PROCEDURE

The case was referred to the Court on 11 December 1992 by the European Commission of Human Rights (“the Commission“) and on 15 February 1993 by the Government of the Kingdom of Sweden (“the Government“), within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 14191/88) against Sweden lodged with the Commission under Article 25 (art. 25) by a Swedish national, Mr Carl G. Holm, on 24 January 1987. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the Government’s application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 (art. 6-1) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 29 January 1993 the Vice-President, Mr R. Bernhardt, drew by lot, in the presence of the Registrar, the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher, Mr A. Spielmann, Mr A.N. Loizou, Mr J.M. Morenilla and Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s memorial on 5 May 1993 and the applicant’s memorial on 10 May. On various dates between 19 May and 10 June 1993 the Commission filed a number of documents which the Registrar had requested from it on the President’s instructions. On 24 May the Secretary to the Commission had informed the Registrar that the Delegate would submit his observations at the hearing.

In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 June 1993. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr C.H. Ehrenkrona, Assistant Under-Secretary for Legal Affairs, Ministry for Foreign Affairs, Agent, Mr G. Regner, Under-Secretary, Ministry of Justice, Adviser;

for the Commission Mr Gaukur Jörundsson, Delegate;

for the applicant Mr B. Malmlöf, advokat, Counsel, Ms P. Attoff, Assistant. The Court heard addresses by Mr Ehrenkrona, Mr Gaukur Jörundsson, Mr Malmlöf and the applicant himself.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. Background

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).

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“).

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.

B. Institution of libel proceedings

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.

C. Constitution of a jury before the District Court and related proceedings

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).

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.

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).

D. The findings on the merits

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).