Absence of outside influence
II. THE RELEVANT DOMESTIC LAW AND PRACTICE A. Freedom of the Press Act 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. 1. Organisation and jurisdiction of Swedish courts in proceedings relating to the freedom of the press 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. 2. Election of jurors 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. 3. Composition of a jury 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). B. Other legislation 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." C. Internal rules of political parties imposing duties of allegiance 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). PROCEEDINGS BEFORE THE COMMISSION 24. In his application (no. 14191/88) filed with the Commission on 24 January 1987, Mr Holm alleged that his case against Mr Hansson and Tidens förlag AB was not determined by an independent and impartial tribunal within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. 25. By decision of 9 January 1992, the Commission declared the application admissible. In its report of 13 October 1992 (Article 31) (art. 31), the Commission expressed the opinion, by fourteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment. [*] FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 26. At the hearing on 22 June 1993 the Government confirmed the submissions set out in their memorial, in which they asked the Court to hold that there had been no violation of the Convention in the present case. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 27. Mr Carl G. Holm alleged that, owing to the participation of five active SAP members in the jury at the District Court of Stockholm, his case had not been heard by "an independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, which in so far as relevant, provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..." This claim was contested by the Government, but was accepted by the Commission. 28. The Government disputed that the manner of composition of the jury had given rise to a legitimate fear as to its independence and impartiality. In their view, the question had to be examined in the light of Sweden ’ s legal system, its legal traditions and political history. Since 1812 a jury system for freedom-of-the-press cases has existed in Sweden; it had been maintained, despite a number of proposals to Parliament to abolish it, in order to safeguard press freedom from undue State interference, in particular as regards political matters. The jury system was seen as having constituted a crucial factor in the development of democracy in Sweden. In the present case there were admittedly certain links between the five SAP members of the jury and the defendants. However, these were only of a general political nature and ought to be distinguished from those at issue in the case of Langborger v. Sweden. In that case the Court found that a Housing and Tenancy Court had failed to satisfy the requirements of independence and impartiality in Article 6 para. 1 (art. 6-1), mainly because two lay assessors who sat in the proceedings had been nominated by, and had close links with, two associations which both had interests contrary to those of Mr Langborger, a party in the proceedings (judgment of 22 June 1989, Series A no. 155, p. 16, para. 35). Unlike the lay assessors in the latter case, the jurors in Mr Holm ’ s case had no direct interest in the outcome of the case, nor could the SAP be said to have had any such interest. Moreover, it was not contended that the jurors in question had a direct influence on or interest in the defendant company. In fact, the only object of their role was to ensure popular participation in the judicial process. Finally, the Government submitted that decisive importance should not be attached to the fact that under Swedish law the jury had the final say in the event of an acquittal. This rule, although it could be considered to favour the defence in cases such as the present, was consistent with the principle of according the printed word the benefit of the doubt, and hence with the right to freedom of expression as guaranteed by Article 10 (art. 10) of the Convention; indeed it might even go further than the requirements of that Article (art. 10). 29. In the Commission ’ s opinion, the applicant ’ s doubts as to the independence and impartiality of the District Court could, in the specific circumstances of the case, be considered objectively justified. It placed emphasis inter alia on the links between the five SAP jurors and the two defendants in the case and on the political nature of the disputed passages of the book. It further noted the absence in the District Court ’ s judgment of reasoning indicating the objective basis for the acquittal and the lack of a possibility of obtaining an effective review of such a verdict on appeal. 30. In determining whether the District Court could be considered "independent and impartial", the Court will have regard to the principles established in its own case-law (see, for instance, the above-mentioned Langborger judgment, Series A no. 155, p. 16, para. 32; and the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and 30), which apply to jurors as they do to professional judges and lay judges. Like the Commission, it finds it difficult in this case to examine the issues of independence and impartiality separately (see also the above-mentioned Langborger judgment, ibid.). 31. It is only the independence and the objective impartiality of the five jurors who were affiliated to the SAP which are in issue; the applicant did not contest their subjective impartiality, finding it impracticable to do so in view of the secrecy of each juror ’ s vote (see paragraph 22 above). It is undisputed that the jurors in question were elected in the prescribed manner by the competent elective body, in conformity with the legal conditions for eligibility: namely that the persons concerned be known to be independent and fair-minded and to have sound judgment and also that different social groups and currents of opinion as well as geographical areas be represented among the jurors (see paragraph 18 above). The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors (see paragraphs 10, 11 and 21 above). It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicant, albeit unsuccessfully, availed himself of this remedy (see paragraph 10 above). Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities and in a judicial manner (see paragraph 22 above). Furthermore, jurors are in several respects viewed under Swedish law as affording the same guarantees of independence and impartiality as judges; in particular, the provisions in the Instrument of Government that aim at safeguarding the independence and impartiality of the judiciary cover juries and the statutory rules on disqualification of judges also extend to jurors (see paragraphs 20-21 above). Accordingly, as indicated by the Commission and the Government, there existed a number of safeguards to ensure the independence and impartiality of the jurors in question. 32. On the other hand, the Delegate of the Commission stressed that under the relevant rules the defence was given the benefit of certain safeguards that were not applicable to the applicant. In this regard, the Court observes the following. Firstly, the defendants could opt for a trial by jury, despite the fact that the applicant did not wish to have one; secondly, an affirmative answer by the jury as to whether the impugned statements in the book constituted an offence required the votes of a special majority of six out of nine jurors (see paragraphs 10 and 15 above). Lastly, the jury had the final say in the event of an acquittal; had the verdict been against the defendants the issue would have been the subject of further review by the District Court judges (see paragraphs 13, 15 and 16 above). It thus appears that the applicant as a private prosecutor was placed in a less favourable position than the defence. However, these features, most of which are typical of a criminal trial involving a jury and which were designed to enhance freedom of the press, do not as such constitute a legitimate reason to fear a lack of independence and impartiality on the part of the jurors. Nevertheless, it is to be noted that there were links between the defendants and the five jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors ’ independence and impartiality. The jurors in question were active members of the SAP who held or had held offices in or on behalf of the SAP (see paragraph 12 above). One of the defendants, the publishing house Tidens förlag AB, had been directly owned by the SAP until 1 January 1985 - the year when the book was published; after that date, it was owned by the SAP indirectly through two companies (see paragraph 8 above). The other defendant, the author, was employed by the publishing house at the time of the book ’ s publication and had served as an ideological adviser to the SAP (see paragraph 8 above). Furthermore, Tidens förlag AB was known for publishing articles portraying opinions shared by the SAP (see paragraph 8 above). The impugned passages of the book were clearly of a political nature and undoubtedly raised matters of concern to the SAP in that they involved criticism of the applicant and Contra, an organisation which had been set up to scrutinise the SAP (see paragraphs 7 and 9 above). 33. Having regard to the foregoing, the Court considers that the independence and impartiality of the District Court were open to doubt and that the applicant ’ s fears in this respect were objectively justified. Moreover, since the Court of Appeal ’ s jurisdiction, like that of the District Court, was limited by the terms of the jury ’ s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former (see paragraphs 13 and 16 above). In sum, there has been a violation of Article 6 para. 1 (art. 6-1) in the particular circumstances of the present case. II. APPLICATION OF ARTICLE 50 (art. 50) 34. Article 50 (art. 50) reads: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Non-pecuniary damage 35. Under this provision Mr Holm sought 400,000 Swedish kronor for non-pecuniary damage. He submitted that there could be no doubt that he had been under psychological pressure from the book ’ s publication until several years after the domestic proceedings ended. The publication, which was reported in the press, came at a very inconvenient time when he was about to start a new job in a new town. Bringing proceedings against the author and the publishing house had seemed to be the only means of regaining credibility. However, he had had little prospect of success, the jury being composed in the way it was. His failure to win the case had attracted extensive media coverage and had resulted in his encountering great professional difficulties. 36. It is not for the Court to speculate on whether the District Court would have arrived at a conclusion in the applicant ’ s favour had it been composed in a different manner. In any event, the Court agrees with the Government that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself adequate just satisfaction in this respect. B. Legal costs 37. The applicant also requested reimbursement of 352,500 kronor under the head of lawyer ’ s costs, of which 170,860 were referable to the domestic proceedings and 181,640 to those before the Convention institutions. The Government agreed to pay only costs in respect of the latter, the amount to be assessed on an equitable basis. 38. As to legal costs in the domestic proceedings, the Court is of the view that it is only in so far as they related to his contesting the ability of the SAP members on the list to take part in the trial that they were necessarily incurred in order to avoid the violation found of Article 6 para. 1 (art. 6-1) of the Convention (see paragraphs 10 and 33 above). With regard to the above costs and those referable to the Strasbourg proceedings, the Court, making an assessment on an equitable basis, considers that the applicant is entitled to recover 125,000 kronor, from which 5,650 French francs already received from the Council of Europe by way of legal aid must be deducted.
The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the independence and impartiality of the District Court had been open to doubt and that the applicant’s fears in this respect had been objectively justified. The Court noted, in particular, that the fact that the defendants had been given benefit of certain safeguards, typical of a criminal trial involving a jury, not available to the applicant as a private prosecutor, had not as such constituted a legitimate reason to fear a lack of independence and impartiality. However, there were links between the defendants and the jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors’ independence and impartiality (one of the defendants, the publishing house, was indirectly owned by SAP, and the other was employed by that company and had been ideological adviser to SAP). Furthermore, the impugned passages of the book were clearly of political nature and undoubtedly raised matters of concern to the SAP. Lastly, since the Court of Appeal’s jurisdiction, like that of the District Court, had been limited by the terms of the jury’s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former.