ITEMID: 001-57835
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF NORTIER v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6
JUDGES: John Freeland;N. Valticos
TEXT: 7. The applicant is a Netherlands national born on 13 May 1972. At the time of the events now under examination, he was fifteen years old.
8. On 19 September 1987 the applicant was released from a youth custody centre after serving a custodial sentence for rape.
Eleven days later, on 30 September 1987, the applicant was again arrested on suspicion of attempted rape. Following his arrest, he admitted the crime to the police.
9. On 2 October 1987 the applicant was brought before Judge Meulenbroek, juvenile judge (kinderrechter) at the Middelburg Regional Court (arrondissementsrechtbank), who sat in the capacity of investigating judge (rechter-commissaris). The applicant was assisted by his lawyer. The private association which was the applicant’s legal guardian was represented by two social workers.
The applicant again confessed.
On an application by the Public Prosecutor (officier van justitie), Juvenile Judge Meulenbroek ordered the applicant to be placed in initial detention on remand (bewaring). He also ordered a preliminary investigation (gerechtelijk vooronderzoek) with a view to having a psychiatric report drawn up. Neither the applicant nor his lawyer objected.
10. Again on an application by the Public Prosecutor, Juvenile Judge Meulenbroek, sitting in the capacity of review chamber (raadkamer), made an order for the applicant’s extended detention on remand (gevangenhouding) on 8 October 1987. He prolonged this order twice on the occasion of periodic reviews, on 10 November and 10 December 1987. At no time did either the applicant or his lawyer raise any objection.
11. In the course of the preliminary investigation, the applicant underwent a psychiatric examination. The resultant psychiatric report recommended that, if the charge were to be proven, the applicant should be sent to an institution for psychiatric treatment (inrichting voor buitengewone behandeling), pursuant to Article 77k of the Criminal Code (Wetboek van Strafrecht), but not punished.
The defence, fearing that the applicant’s initial confession had been obtained under duress, requested that the two police officers who had taken down his initial statement following his arrest be questioned as witnesses. Juvenile Judge Meulenbroek referred the matter to Judge Witziers, Vice-President of the Middelburg Regional Court and substitute juvenile judge. Judge Witziers questioned the two police officers on 22 and 23 December 1987. The results were such that the defence did not ask for them to be heard again at the trial.
The preliminary investigation in the present case consisted only of the questioning of the said witnesses and the above-mentioned psychiatric examination.
12. The applicant received a summons in December 1987 to appear before Juvenile Judge Meulenbroek on 6 January 1988 for trial.
13. By letter of 5 January 1988, the day before the trial was to take place, the applicant’s lawyer challenged Juvenile Judge Meulenbroek on the ground that he was not impartial, since he had taken pre-trial decisions concerning the applicant’s detention on remand.
Juvenile Judge Meulenbroek rejected the challenge as ill-founded on 6 January 1988.
14. The applicant appealed against this decision to the Middelburg Regional Court, which rejected the challenge on 22 January 1988. In its decision the Regional Court considered in detail the relevance of the judgment of the European Court in the case of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86). The Regional Court was of the opinion that there was a fundamental difference between the position of a Belgian investigating judge and that of a Netherlands juvenile judge, particularly as far as their independence was concerned. It further held that the De Cubber judgment did not imply that the performance of the functions of investigating judge and trial judge in the same case constituted a breach of Article 6 para. 1 (art. 6-1) under all circumstances. Netherlands juvenile criminal procedure provided for an exception to the rule of general criminal procedure prohibiting the combination in a single person of the functions of investigating judge and trial judge (see paragraph 20 (a) below). As the juvenile judge had rightly emphasised in his decision, the reason for this was to be found in the pre-eminence of the educational aspect of juvenile criminal law and the importance of optimally co-ordinating the various decisions taken with regard to the minor.
15. The applicant was eventually tried on 25 January 1988, by Juvenile Judge Meulenbroek. He was assisted by his lawyer. One of the social workers representing the private association which was the applicant’s legal guardian was also present and allowed to speak.
Confirming his earlier statements, the applicant admitted the charge, which was then held to be proven in the light of the evidence. In accordance with the recommendation contained in the psychiatric report (see paragraph 11 above), the applicant was committed to an institution for the psychiatric treatment of juvenile offenders pursuant to Article 77k of the Criminal Code. He was reminded by the juvenile judge of the right to appeal, but the applicant’s lawyer, who alone could decide to do so (see paragraph 22 below), did not file an appeal.
In March 1990 Juvenile Judge Meulenbroek carried out the biennial review required by Article 77r of the Criminal Code to determine whether or not it continued to be in the applicant’s interests for him to remain in the institution. Apparently neither the applicant nor his lawyer raised any objection to the prolongation of the measure. The applicant was released unconditionally on 9 August 1991.
16. Since 1901 it has been the rule in the Netherlands not to apply penal law and criminal procedure to juveniles in the same way as to adults. Juvenile penal law and criminal procedure provide for exceptions to the general law: that is, general penal law and criminal procedure apply to the extent that they are not expressly deviated from.
Juveniles cannot be prosecuted for acts committed before the age of twelve (Article 77a of the Criminal Code).
Juvenile criminal procedure applies if the suspect has not yet reached the age of eighteen when a prosecution against him is commenced (Article 487 of the Code of Criminal Procedure (Wetboek van Strafvordering)).
In principle, the same age-limit applies in juvenile penal law (Article 77b of the Criminal Code). However, subject to certain conditions, the Criminal Code makes it possible on the one hand to apply general penal law to a suspect who at the time of the offence was sixteen or seventeen years old (Article 77c, ibid.), and on the other hand to apply juvenile penal law to a suspect who at the time of the offence had reached the age of eighteen but not yet that of twenty-one (Article 77d, ibid.).
17. Juvenile penal law is different from that applying to adults only in that it has its own system of punishments (straffen) and curative or protective measures (maatregelen) designed to meet the specific aims of this branch of criminal law which (in the words of the Explanatory Note to the Act of 9 November 1961 - see paragraph 18 below) "has primarily a pedagogical purpose, the interests of the minor being borne in mind at all times", and which, accordingly, seeks mainly to protect and educate the juvenile concerned.
Punishments available under juvenile penal law are placement in a youth custody centre (tuchtschool) for up to six months, juvenile detention (arrest) for up to fourteen days, a fine of up to five hundred guilders and a reprimand (berisping) (Article 77g). The measures include, inter alia, judicial supervision (ondertoezichtstelling) - which is in fact a protective measure under civil law (Articles 1:245 et seq. of the Civil Code (Burgerlijk Wetboek)) - and committal to an institution for the psychiatric treatment of young offenders (Article 77h). The latter is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance (Article 77k).
18. Juvenile criminal procedure also seeks to protect and educate, but here the differences from general criminal procedure are considerable.
The underlying principle of juvenile criminal procedure is that it
"should be simple and understandable for both the minors concerned and their parents. Formalities which have some purpose for adults but are practically devoid of purpose in relation to minors should be omitted, whereas on the other hand special requirements should ensure proper treatment of juvenile cases". (Quoted from the Explanatory Note to the Act of 9 November 1961, which Act entered into force in 1965, by which juvenile criminal procedure - introduced in 1901 and thoroughly reviewed in 1921 - was modernised)
It is by reason of this basic idea and of the need to improve the protection of juveniles by creating links with the protection of juveniles in civil law - in which the juvenile judge is the central actor and is empowered to order various protective measures - that the juvenile judge is the central actor in juvenile criminal procedure also. Several advantages are claimed for this system:
(a) it is conducive to the protection of the juvenile if the juvenile judge is consulted beforehand on the subject of the desirability of criminal prosecution, especially if he already knows the minor concerned; this may be the case for example if he has been involved in protective measures under civil law, such as placing the minor under judicial supervision;
(b) a relationship of trust may develop between the juvenile judge on the one hand and the minor and his or her parents or guardian on the other owing to the fact that the minor and his or her parents or guardian (who are summoned to appear at the preliminary investigation stage and the trial and have the right to speak) are dealt with by one and the same judge throughout the proceedings, which moreover are held in private and in an informal manner;
(c) in those cases in which the juvenile has made an immediate confession - as usually happens when the suspect is a minor - a plan may be developed at an early stage for the future of the juvenile concerned, even during the preliminary investigation;
(d) the juvenile judge is the most suitable person for the purpose in view of his expert knowledge and his considerable decision-making powers.
The close link between protective measures under civil law and criminal prosecution may be seen in Article 14a of the Code of Criminal Procedure; if there are proceedings relating to the protection of the minor under civil law (such as a request to have him or her placed under judicial supervision or aimed at divesting the parents of their parental rights) running parallel to the criminal prosecution, then under this provision the prosecution may be suspended until a final decision has been taken in those parallel proceedings.
19. The central position of the juvenile judge appears clearly from the fact that the juvenile judge is involved in the decision whether or not to prosecute. According to Article 493 of the Code of Criminal Procedure, if the Public Prosecutor wishes to drop charges against a minor unconditionally, he must first consult the juvenile judge; if he wishes to do so conditionally, he requires the juvenile judge’s consent. If charges are not dropped immediately, the Public Prosecutor must obtain from the child welfare authorities information on the minor’s personality and living conditions; they may then comment on the desirability of prosecution (ibid., Article 495).
In order to implement these provisions effectively, it has been the practice for the juvenile judge, the Public Prosecutor and the representative of the child welfare authorities to meet on a regular basis to discuss case files together. This so-called "three-way consultation" (driehoeksoverleg) took place in the absence of the minor or his legal representative or counsel, and without their being informed about it.
20. The juvenile judge is also the central figure in the investigation phase.
(a) This is clear in the first place from Article 494 of the Code of Criminal Procedure, which stipulates that the juvenile judge is to act as investigating judge, and from Article 496, which reads:
"1. The juvenile judge shall be responsible for the preliminary investigation, unless the case involves one or more suspects who have reached the age of eighteen at the moment the prosecution against them is commenced and the case cannot, in the initial opinion of the Public Prosecutor and the juvenile judge, be divided.
2. In cases where the juvenile judge orders a preliminary investigation, he shall be regarded as investigating judge responsible for the preliminary investigation."
This means that the juvenile judge has all the decision- making powers of an investigating judge and that he is in charge of the preliminary investigation.
A preliminary investigation may involve such matters as obtaining expert opinions and technical evidence, questioning witnesses, mail and telephone interceptions, searches and visits to the scene of the crime, as well as interrogation of the suspect.
According to Article 268 of the Code of Criminal Procedure, a judge who has undertaken any investigation in the case as an investigating judge is debarred from taking part in the trial; however, by virtue of Article 500d, this provision does not apply in juvenile procedure.
(b) It is also the juvenile judge who takes all decisions concerning detention on remand. In adult criminal procedure, initial detention on remand (for a maximum of six days, which may be prolonged once for a further six days) is ordered by the investigating judge and extended detention on remand (for a maximum of thirty days, which may be prolonged twice for further periods of thirty days) by the review chamber of the Regional Court. In juvenile criminal procedure, the juvenile judge exercises both these powers; he not only officiates as investigating judge but also, pursuant to Article 488, as review chamber. One consequence of this is that in cases where in adult criminal procedure an appeal against decisions of the investigating judge lies to the review chamber, and to the extent that such appeals are allowed in juvenile procedure, the juvenile judge may be called upon to hear appeals against some of his own decisions.
21. The central position of the juvenile judge further appears from the fact that it is, as a rule, the juvenile judge himself who, sitting as a single judge, conducts the trial and gives judgment (Article 500 para. 1). It is for the juvenile judge to decide whether or not the case is one that should be referred to a chamber consisting of the juvenile judge and two other judges (Article 500 para. 2, in conjunction with Article 500e).
The juvenile judge is also involved to a significant degree with the execution of the punishment or measure imposed. For example, a sentence to the punishment of juvenile detention is not executed until the judge who imposed it has been consulted (Article 505) and the punishment of reprimand is administered personally by the judge who imposed it (Article 506).
22. If the juvenile concerned has not yet reached the age of sixteen, then it is his lawyer who enjoys all the procedural rights afforded the suspect by the Code of Criminal Procedure) instead of the juvenile himself (with the exception of the rights which the suspect may avail himself of during the hearing) (Article 504 para. 1). However, the juvenile’s legal guardian (wettelijke vertegenwoordiger) may file a note of protest to the president of the court with jurisdiction as to both facts and law before which the juvenile is being prosecuted or was last prosecuted if he disapproves of the lawyer’s use of these rights or his failure to make use of them (Article 504 para. 2).
Pursuant to Article 56 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) an appeal against the judgment of the juvenile judge lies to the Court of Appeal (gerechtshof). Such an appeal involves a complete re-examination of the case by three judges (Article 422 of the Code of Criminal Procedure).
23. For a long time there has been criticism of the system described above. For this reason, a committee for the revision of juvenile criminal law was set up in 1979 and it published a report in 1982. Criticism of the existing system in legal writing increased as a result of this report and of the judgments of the European Court in the cases of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86) and Hauschildt v. Denmark (judgment of 24 May 1989, Series A no. 154). However, opinion is still divided on the question to what extent it is necessary to modify the present system.
These factors have resulted in informal changes in the way the system operates (see paragraph 24 below) and a proposal for a change of the law (see paragraph 25 below). In this connection, it is also useful to mention a development in Netherlands case-law (see paragraph 26 below).
24. In the first place, there is now an informal arrangement under which the juvenile judge, when confronted with a suspect who denies charges, entrusts the interrogation of witnesses to another juvenile judge and to that extent does not act as investigating judge. However, even in such cases he continues to take the decisions on detention on remand.
Secondly, "three-way consultations" (see paragraph 19 above) have been discontinued at most Regional Courts.
25. A proposal for an amendment of the law was sent to Parliament in 1989; the written procedure has not yet been completed. It essentially follows the suggestions of the committee referred to in paragraph 23 above, the gist of which is to remove from the juvenile judge the functions of investigating judge and review chamber. However, the proposal differs from those suggestions in that the juvenile judge is to retain the power to order initial detention on remand.
26. This last feature corresponds to the case-law of the Supreme Court (Hoge Raad), particularly its judgments of 15 March 1988, NJ (Nederlandse Jurisprudentie) 1988, no. 847 and 13 November 1990, NJ 1991, no. 219. In the first-mentioned judgment the Supreme Court construed Article 268 of the Code of Criminal Procedure (see paragraph 20 above) as meaning that an investigating judge who had not carried out any preliminary investigations but had given the order for initial detention on remand was not debarred from sitting at the trial. This was not held to jeopardise his independence. The judgment of 1990 concerned a juvenile judge who sat at the trial pursuant to Article 500e (see paragraph 21 above) after he had instituted a preliminary investigation in the case as investigating judge. The Supreme Court held that as a result one of the judges taking part in the trial lacked impartiality as required by Article 6 (art. 6) of the Convention. According to the Supreme Court, such would always be the case if
"one of those judges [had] previously had dealings in the same case aimed at the collection of evidence, either as an investigating judge in the course of the preliminary investigation or in another way during the investigations preparing the case".
27. As far as the preconditions for initial and extended detention on remand are concerned, juvenile criminal procedure does not differ from adult criminal procedure. They are to be found in Articles 67 and 67a of the Code of Criminal Procedure.
Article 67 of the Code of Criminal Procedure enumerates the cases in which detention on remand (voorlopige hechtenis) may be ordered; for present purposes, these may be summarised as those cases in which a person is suspected of a relatively serious crime (paragraphs 1 and 2). In addition, paragraph 3 of Article 67 provides as follows:
"The preceding paragraphs of this Article shall only be applied if it appears from certain facts or circumstances that there are serious indications (ernstige bezwaren) against the suspect."
In this connection, the Memorandum in Reply (Memorie van Antwoord) accompanying a proposal for amendment of the statutory provisions governing detention on remand states that there are such serious indications when in the opinion of the investigating judge
"it is prima facie likely (aannemelijk) that the suspect has committed the offence in relation to which detention on remand is applied for". (see Bijlagen Handelingen Tweede Kamer - Appendices to the Records of the Lower Chamber of Parliament -1972-9994-No. 8, page 10)
Article 67a enumerates the reasons for which detention on remand may be ordered. These may be summarised as the serious risk of the suspect’s absconding; the fact that the crime, being of a particularly grave nature, has created considerable social unrest; the serious risk that the suspect will commit more crimes of a grave nature and the need to secure evidence.
However, paragraph 3 of Article 67a provides:
"An order for detention on remand shall not be made if there exists a distinct possibility that in the event of conviction no unconditional prison sentence or measure involving loss of liberty will be imposed on the suspect, or that implementation of the order will cause [the suspect] to be deprived of his liberty for longer than the duration of the sentence or the measure."
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-102809
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SZUBSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Arkadiusz Szubski, is a Polish citizen who was born in 1978 and is currently detained in Wejherowo Remand Centre. He was represented before the Court by Ms G. Koczorowska, a lawyer practising in Szczecin.
On an unspecified date in 2000 the applicant was committed to Poznań Remand Centre to serve a prison sentence. It appears that he remained there until late 2002 when he was transferred to Nowogard Prison. On 25 November 2003 he was once again detained in Poznań Remand Centre.
On a further, unspecified date the applicant was transferred to Goleniów Prison and later to prisons in Stargard Szczeciński, Czarne and eventually to Wejherowo Remand Centre where he currently remains.
The applicant submitted that all prisons and remand centres in which he had been detained were overcrowded. He submitted, by way of an example, that in Poznań Remand Centre he had been placed together with thirteen other inmates in a prison cell measuring approximately 30 m2. He pointed out that the Remand Centre’s sanitary facilities had been old and rusty and that the walls of his cell had been covered with mould. In Nowogard Prison the applicant was detained together with five other detainees in a cell of 8.5 m2. The sanitary conditions in Nowogard Prison were comparable to those in Poznań Remand Centre. In Goleniów Prison the applicant was detained together with a paraplegic inmate and he submitted that he had been permanently required to take care of him, help him to wash himself and wash his clothes as well as to clean the cell, although these tasks were normally incumbent on the prison authorities.
The Government acknowledged that in Poznań Remand Centre, in Goleniów Prison and in Nowogard Prison the applicant might have been
temporarily placed in cells which measured less than 3 m2 per prisoner. They further pointed out that the cells in which the applicant had been detained were disinfected on a regular basis. Moreover, the applicant had been provided with adequate personal hygiene products and could take a bath once a week. With regard to the issue of care of the paraplegic fellow inmate, the Government explained that the applicant had never been required to take care of the detainee in question and that he had done so of his own accord, along with other co-detainees placed in the same cell. They further stated that the paraplegic detainee had been receiving adequate assistance from the prison medical staff.
More recently, the Government also submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission.
On 25 March and 15 April 2005 the applicant filed complaints with the penitentiary authorities about the conditions of his detention. Both complaints were dismissed as unfounded.
The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-58369
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF BLADET TROMSO AND STENSAAS v. NORWAY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 6. The first applicant is a limited liability company, Bladet Tromsø A/S, which publishes the daily newspaper Bladet Tromsø in the town of Tromsø. The second applicant, Mr Pål Stensaas, was its editor. He was born in 1952 and lives at Nesbrua, near Oslo.
Tromsø is a regional capital of the northern part of Norway. It is the centre of the Norwegian seal hunting industry and has a university which includes an international polar research centre.
At the relevant time Bladet Tromsø had a circulation of about 9,000 copies. Like other local newspapers in Norway, it was used as a regular source by the Norwegian News Agency (“NTB”).
7. Mr Odd F. Lindberg had been on board the seal hunting vessel M/S Harmoni (“the Harmoni”) during the 1987 season as a freelance journalist, author and photographer. Several of his articles pertaining to that season had been published by Bladet Tromsø. These had not been hostile to seal hunting. On 3 March 1988 Mr Lindberg applied to the Ministry of Fisheries to be appointed seal hunting inspector for the 1988 season on board the Harmoni. Following his appointment on 9 March 1988 he served on board the Harmoni from 12 March to 11 April 1988, when the vessel returned to its port in Tromsø. Thereafter, and until 20 July 1988, Bladet Tromsø published twenty-six articles on Mr Lindberg’s inspection.
8. On 12 April 1988 Bladet Tromsø printed an interview with Mr Lindberg in which he stated, inter alia, that certain seal hunters on the Harmoni had violated the 1972 Seal Hunting Regulations (forskrifter for utøvelse av selfangst) – as amended in 1980 – issued by the Ministry of Fisheries. The headline of the article read (all quotes below are translations from Norwegian):
“Research reveals crude hunting methods in the West Ice
Deplorable violations of the regulations”
The introduction to the article quoted Mr Lindberg as follows (in bigger print):
“ ‘If seal hunting is to be permitted to continue, certain sealers have to stop killing the seals in the way they do. During the last two winters, which I have spent in the Arctic Ocean, I have uncovered a great deal which is clearly inconsistent with acceptable seal hunting methods. However, I should like to emphasise: Only a few of the hunters are guilty of [such behaviour] and those few do the [seal hunting] industry a disservice and provide Greenpeace with good arguments. It is really regrettable and completely unnecessary!’ ”
The interview continued, inter alia, as follows:
“ ‘If seal hunting is to be permitted to continue – and I am of the opinion that it should – there ought to be an inspector on every vessel. One that makes sure that the animals are killed in a proper manner and are not subjected to unnecessary suffering.
... But let me emphasise: I am in favour of seal hunting, though it has to be carried out in an exemplary manner.’
...
Mr Lindberg states that he has been threatened by hunters to remain silent about his observations and experiences during the seal hunting on the West Ice. He does not wish to go into details ...
‘That will be covered in the report I am going to write ...’ ”
The article did not mention any seal hunter by name or provide any details of the allegedly illegal hunting methods.
9. In order to defend themselves against the accusations contained in the above article of 12 April 1988 the skipper on the Harmoni and three of its crew members gave interviews which Bladet Tromsø published on 13 April. The introduction to the main interview stated (in bigger print), inter alia:
“The crew on ... the Harmoni is really furious. The allegations made by ‘researcher’ Mr Lindberg regarding ... seal hunters’ beastly killing methods are too much to swallow. ‘Mr Lindberg is expressing a blatant lie. He pretends to be a researcher but has no clue of what he is talking about’, says Mr Kvernmo [crew member]. ”
A separate interview with Mr Kvernmo entitled “They feel themselves blackened” quoted him (in an introduction reproduced in bigger print) as follows:
“ ‘I do not know what Mr Lindberg is trying to achieve with his accusations of bestial killing of seals. But we feel ourselves blackened and do not want to have this hanging over us.’ ”
Later in the interview Mr Kvernmo was quoted as saying:
“ ‘... Mr Lindberg describes us as blood-thirsty murderers but we follow the rules and are humane ...’ ”
10. Mr Lindberg’s official report on the hunting expedition was completed on 30 June 1988, two and a half months after the expedition. This was significantly later than the normal time allotted to the preparation of such reports and after the Ministry of Fisheries had enquired about it. The Ministry received it on 11 July 1988 and, because of the holiday period, did not review it immediately.
In his report, Mr Lindberg alleged a series of violations of the seal hunting regulations and made allegations against five named crew members. He stated, inter alia:
“I have also noticed that [seals] which have been shot in such a manner that they appear to be dead have ‘awakened’ during the flaying ... I experienced several times that animals which were being flayed ‘alive’ showed signs that their brains’ electric activity had not been terminated.”
Mr Lindberg recommended that there should be a seal hunting inspector on every vessel and that compulsory training should be organised for all first-time hunters. Their knowledge of the regulations should also be tested. Finally, Mr Lindberg recommended an amendment to the regulations as regards the killing of mature seals in self-defence.
11. The Ministry of Fisheries decided temporarily (see paragraph 14 below) to exempt Mr Lindberg’s report from public disclosure relying on section 6, item 5, of a 1970 Act relating to Access of the Public to Documents in the Sphere of the Public Administration (lov om offentlighet i forvaltningen, Law no. 69 of 19 June 1970). Under this provision, the Ministry was empowered to order that the report not be made accessible to the public, on the ground that it contained allegations of statutory offences.
An article published by Bladet Tromsø on 15 July 1988 contained the following observations on the Ministry’s decision:
“ ‘The report is of such a nature that we have exempted it from public disclosure’, says [a counsellor in the Ministry]. ‘So far we have merely read through it. When we have had time to study it closely, it will be sent to the Fishing Inspectorate and to the Seal Hunting Council. But first we shall examine all the information provided by inspector Mr Lindberg, in particular as regards any incidents that might be relevant to the Penal Code. Everyone who is personally mentioned in the report will be given an opportunity to explain and defend himself.’ ”
12. In the above-mentioned article of 15 July 1988 Bladet Tromsø, having received a copy of the report which Mr Lindberg had transmitted to the Ministry of Fisheries, reproduced some of his statements concerning the alleged breaches of the seal hunting regulations by members of crew of the Harmoni. The headlines on the front page read:
“Shock report”
“ ‘Seals skinned alive’ ”
The text on the front page stated:
“Seal hunting inspector Mr Lindberg is criticising Norwegian seal hunters in a shock report on the last ... season. [He] refers to illegal methods of killing, drunken crew members and the illegal start of the hunt before the opening of the hunting season. Not least the report includes an account of his being beaten up by furious hunters, who also threatened to hit him on the head with a gaff [hakapik] if he did not keep quiet. ‘The report is of such a character that we have exempted it from public disclosure’, said a spokesperson for the Ministry of Fisheries.”
13. On 19 and 20 July 1988 Bladet Tromsø published the entire report in two parts. The introduction to the first part stated:
“... During the last days [Mr Lindberg’s report] has created considerable turbulence within the seal hunting [profession]. Most consider it a particularly severe attack on a profession which has already met with opposition, both nationally and internationally. In several responses to Bladet Tromsø it is clearly alleged that Mr Lindberg is an agent of Greenpeace.
Mr Lindberg has given us access to his notes from the [expedition]. The report has since been treated as confidential by the Ministry, given, inter alia, that various persons have been named and associated with breaches of the regulations. We have deleted the names ...
The report ... does not contain one-sided criticism ... Mr Lindberg also compliments a number of crew members ... [He] in addition writes that he is a sympathiser of seal hunting. But not with the manner in which it was conducted on the West Ice this year.”
The second part of Mr Lindberg’s report, which was published by Bladet Tromsø on 20 July 1988, contained the following statements (while deleting with black ink the names of the crew members referred to in square brackets below):
“At 11.45 [a crew member] beat to death a female harp seal which was protecting her pup.”
“At 14.40 [a crew member] beat to death a female harp seal which was protecting her pup.”
“At 15.00 [a crew member] beat to death a female harp seal.”
“The same day [I] pointed out to the skipper that [a crew member] did not kill cubs in accordance with the regulations (i.e. he ... hit it with the spike [of the gaff] and then dragged the cub after him).”
“At 15.00 [a crew member] beat to death a female harp seal which was protecting her pup.”
“At 19.00 [a crew member] killed a female [harp seal] which was protecting her pup.”
The hunting of harp seals had been legal in 1987.
14. In a commentary of 15 July 1988 Bladet Tromsø stated:
“Poor working conditions?
Are the authorities in proper control of seal hunting as conducted at present? Do the ... inspectors of the Ministry ... enjoy working conditions enabling them to deliver unbiased reports about seal hunting or do they become too dependent on having a good relationship with the seal hunters? In other words, are the sealing inspectors sufficiently independent in their supervision on board the sealing vessels?
These are questions which Bladet Tromsø has received from persons who know the industry well but, for various reasons, do not wish to come forward in public. The background to these questions is the report which Mr Lindberg has transmitted to his employer, the Ministry of Fisheries. Mr Lindberg was assigned as seal hunting inspector on board the Tromsø-registered vessel Harmoni ... during the 1988 season. The report is so critical that the Ministry has decided to keep it ‘confidential’ for the time being. ..., a counsellor in the Ministry ... admits that he has never before received a report from a seal hunting inspector which was ‘so unkind as this one’. ”
15. On 18 July 1988 Bladet Tromsø published a further interview with crew member Mr Kvernmo, entitled “Severe criticism against the seal hunting inspector: The accusations are totally unfounded”. The caption under a photograph on the front page stated:
“Sheer lies. ‘Judging from what has transpired in the media regarding [Mr Lindberg’s] report, I would characterise his statements as sheer lies’, says Mr Kvernmo. [He] ... demands that the report be handed over immediately [to the crew]. In this he is supported by two colleagues, Mr [S.] and Mr [M.] …”
The interview with Mr Kvernmo continued inside the newspaper and bore the headline “ ‘Mr Lindberg is lying’ ”.
The newspaper in addition published a letter on the same topic from Mr Kvernmo to the editor. According to Mr Kvernmo, Mr Lindberg’s presence on board the Harmoni in 1987 had not been appreciated. When he turned up at the departure of the 1988 expedition, this was after having made a number of unsuccessful requests to the shipowner and the crew. As a last resort, he had bluffed the Ministry into believing that he was to go with the Harmoni to the West Ice and that he could take on, on a voluntary basis, the task of inspector. Without further ado, the Ministry had appointed him inspector because he had offered to do the job free of charge. Consequently, the Ministry sent an inspector whose knowledge about seal hunting and hunting regulations was extremely weak and who was psychologically unsuited for the job. He had carried out his tasks in an utterly strange and poor manner.
16. In an editorial, also published on 18 July 1988, the newspaper stated:
“Some people are of the view that Norwegian seal hunting will again suffer from severe criticism from nature activists after the seal hunting inspector has revealed a number of objectionable circumstances in connection with an expedition. We believe this report will strengthen [Norway’s reputation] as a serious seal hunting nation, provided that the contents of the report are used in a constructive manner. In all professions there are certain persons who will abuse the confidence which society has placed in them and who will operate on the edge of the law. The fisheries authorities must react strongly against all abuse. The authorities now have a unique opportunity to clarify the purpose of Norwegian seal hunting and how it should be conducted in an internationally acceptable manner.
...
What is revealed by the fresh report ... has to be perceived as a single, regrettable episode warranting ... a closer scrutiny of the manner in which Norwegian seal hunting should be carried out in the years to come ...”
17. On 19 July 1988 Bladet Tromsø published an article entitled:
“The Sailors’ Federation is furious and brands the seal report as:
‘A work commissioned by Greenpeace!’ ”
Two representatives of the Norwegian Sailors’ Federation were quoted, inter alia, as follows:
“ ‘We know our seal hunters and also have a certain knowledge of ... inspector Mr Lindberg. In the light of this we dare to say: We do not believe a word of what is stated in [his] report! Nor do we doubt for a second that [he] was placed on board the Harmoni by Greenpeace. We will therefore demand that the Ministry provide all the information surrounding [his] appointment ...
... We are also greatly surprised that the writer of Bladet Tromsø’s editorial [of 18 July 1988] really dares to take a stand in this matter without having any better knowledge of seal hunting. We consider that frightening ...’ ”
18. On the same date Bladet Tromsø published an interview with Mr Lindberg, in which he stressed that his report had included positive statements concerning ten crew members, whom he named.
19. In an interview published by Bladet Tromsø on 20 July 1988 a representative of Greenpeace denied that it had been involved in any way in producing Mr Lindberg’s report.
20. In a press release dated 20 July 1988, the Ministry of Fisheries stated that because of its peculiar contents and form, the Lindberg report had been exempted from public disclosure until further notice. According to veterinary expertise, it was practically impossible to flay a seal alive, whilst it was usual that reflex movements in the animal’s muscles occur during slaughter. As regards the appointment of Mr Lindberg as an inspector, the Ministry stated that he had referred in his application to the fact that he had attended the seal hunt in 1987 in order to study all aspects of the hunt and to carry out research for the University of Oslo. He intended to attend also the 1988 season. The purpose of his research was to write a book on seal hunting and to carry out scientific work. In addition he had indicated that, since at all events he was to go with the Harmoni during the 1988 season, he was prepared to carry out the inspection without remuneration. The Ministry had had several telephone conversations with Mr Lindberg, during which he said that he had studied biology and was affiliated to several scientific associations, particularly in the area of polar research. In view of the fact that Mr Lindberg was willing to do the job free of charge and, especially, his research background, the Ministry decided to appoint him. While seeking to attend the hunting expedition, he had offered his services to the Institute of Biology at the University of Oslo. As a result, during the expedition, he had collected for the University certain parts of seal bodies. Later investigations had revealed that the inspector had no formal higher education and no competence as a researcher, nor any experience with the killing of animals. His strong reactions and comments on the killing of the animals were characterised by the fact that he did not have the required background for being an inspector. His report could not be regarded as a serious and adequate inspection report.
21. On 21 July 1988 Bladet Tromsø published an article entitled “The Ministry of Fisheries rejects Mr Lindberg’s report”, which quoted a senior official of the Ministry as having said:
“ ‘[Mr Lindberg’s] report cannot be regarded as a serious ... inspection report; it is characterised by the fact that he lacks the professional background which an inspector should have …’ ”
22. Another article published by Bladet Tromsø on the same day quoted Mr Kvernmo as follows:
“ ‘We are genuinely pleased that Mr Lindberg’s allegations that we violated legal laws and regulations during this year’s seal hunting ... have been rejected by the Ministry ... We would never accept allegations that we were, among other things, flaying seals alive ...’ ”
23. A further article published by Bladet Tromsø on 23 July 1988 bore the following headline:
“The seal hunters are being bullied – The Sailors’ Federation wants to involve the police: ‘Have the whole seal matter investigated’ ”
On the same day Bladet Tromsø published a further interview with a senior official of the Ministry of Fisheries, quoting the latter as having stated:
“ ‘In my view the media have now harassed the seal hunting profession enough. Imagine if you, working in the media, were to be harassed in the same manner. I can tell you that there are now seal hunters who cannot sleep and who are receiving telephone calls day and night.’
Yesterday [the official] seemed more or less overcome, not least after [the newspaper] Aftenposten had published photographs taken by Mr Lindberg during this year’s seal hunting showing how seals are being killed with a gaff. [The official] had no compliment to spare for Bladet Tromsø either: ‘You were the ones who started this craziness!’... ”
24. In a further article published by Bladet Tromsø on 25 July 1988 two former seal hunting inspectors were quoted as follows:
“ ‘We cannot claim that Mr Lindberg has not witnessed and experienced what he describes in his report ... But he has drawn completely wrong conclusions. Norwegian [seal hunters in the Arctic Ocean] are diligent and responsible and have much higher morals than regular Norwegian hunters when it comes to killing animals ...’ ”
25. On 15 July 1988 the Norwegian News Agency issued a news bulletin reiterating some of the information provided by Bladet Tromsø on the same date as to Mr Lindberg’s allegations (see paragraph 12 above). It stated that the Ministry of Fisheries was of the view that violations of the seal hunting regulations might have occurred. This bulletin was dispatched to its approximately 150 subscribers and various newspapers published articles which were based on it.
26. In a bulletin of 18 July 1988 the Norwegian News Agency – using Bladet Tromsø as its source – affirmed, firstly, that the crew had demanded that the report immediately be made accessible to the public (“straks … offentliggjort”) and, secondly, that the Association of Fishing Vessel Companies had also called for the report to be made public. The Government submitted that the first statement had been based on Bladet Tromsø’s article of 18 July 1988 (see paragraph 15 above), misrepresenting, however, the fact that the crew had only requested that the report be handed over to it. In another news bulletin of the same date, the Agency reported the Ministry as having stated that veterinary experts would consider the controversial Lindberg report; that the Ministry would issue further information on the outcome and possibly also on the circumstances of his recruitment as inspector but would not comment any further until it had collected more information. It further stated that, on that date, both the Association of Fishing Vessel Companies and the crew had requested that the report be made accessible to the public. Bladet Tromsø received the bulletin on the same day.
According to a news bulletin of 19 July 1988, the Ministry of Fisheries had stated that, when appointing him inspector, it had relied on information supplied by Mr Lindberg himself to the effect that he was carrying out research projects. The Agency understood the Ministry to mean that his research and links to the University of Oslo were thought to be far more extensive than they had been in reality.
In a further news bulletin issued later on the same day, the Agency stated that Mr Lindberg had refused to meet with officials of the Ministry to discuss his report.
On 19 July 1988 the newspaper Adresseavisen, referring to the news bulletins issued by the Norwegian News Agency, stated that the seal hunters had requested that Mr Lindberg’s report be made public.
27. Mr Lindberg’s report continued to receive a wide coverage in other media as well. On 29 July and 3 August 1988 extensive excerpts from the report were published in Fiskaren, a bi-weekly for fishermen. One of the articles published on 29 July 1988 bore the following headline:
“Mr Lindberg in the report on seal hunting:
‘It happens that animals are being flayed while their eyes are rolling and they are yelping’ ”
The introduction to the article read as follows:
“ ‘During the last part of the hunting period the animals, once shot, are rarely examined so as to verify that the shots have been lethal ... The animals are thereafter lifted on board, often alive. Animals are therefore often flayed while ... their eyes are rolling and they are yelping.’
These are some of the occurrences which Mr Lindberg claims to have observed while acting as a seal hunting inspector on board the Harmoni ... Such ... statements have made the Ministry ... and professionals consider that Mr Lindberg’s report is ‘not serious’ and wish not to make it accessible to the public.
In [his] report Mr Lindberg makes very strong accusations against named hunters. In the excerpts published by Fiskaren we have consistently deleted all names.”
28. The excerpt published by Fiskaren on 3 August 1988 included the observations which Mr Lindberg had made in the report as reproduced by Bladet Tromsø on 20 July 1988.
29. Over the following months the debate about Mr Lindberg’s report died out until 9 February 1989, when he gave a press conference in Oslo. A film entitled “Seal Mourning” (containing footage shot by Mr Lindberg from the Harmoni) showed certain breaches of the seal hunting regulations. Clips from the film were broadcast by the Norwegian Broadcasting Corporation later the same day and the entire film was broadcast by a Swedish television channel on 11 February 1989. During the next days scenes from the film were broadcast by up to twenty broadcasting companies worldwide, including CNN and the British Broadcasting Corporation.
30. In view of the various reactions to the film, both within Norway and internationally, the Minister of Fisheries was recalled while on an official journey abroad. Seal hunting was debated in Parliament on 14 February 1989 and, on 24 February 1989, the government announced that it would set up a Commission of Inquiry. The government also banned with immediate effect the killing of baby seals or pups.
31. On 5 September 1990 the Commission of Inquiry submitted an extensive report based on various evidence, including, inter alia, Mr Lindberg’s inspection report, his footage as well as a book written by him. For the purposes of the inquiry Mr Lindberg had been examined as a witness by the Sarpsborg City Court (byrett). The Commission had also heard several of the crew members of the Harmoni as well as other seal hunting inspectors.
In its report the Commission of Inquiry found that the truth of most of Mr Lindberg’s allegations relating to specifically named individuals had not been proved. It found no basis for the allegation that seals had been skinned alive or that pups had been kicked or flayed alive (p. 8).
On the other hand, the Commission identified several breaches of the hunting regulations (p. 69), which it deemed had been established by the footage presented by Mr Lindberg. For instance, one seal had been killed with the sharp end of a gaff without previously having been hit with its dull end. Another seal had been killed with an axe, whereas a third seal had been lifted on board the Harmoni whilst still alive. The Commission published those parts of Mr Lindberg’s report which pertained to the Harmoni’s hunting expedition, after deleting the crew members’ names. The Commission further recommended various amendments to the hunting regulations, to their implementation and to the training of hunters. These recommendations were in line with some of the suggestions Mr Lindberg made in his report, notably as to the training of hunters on killing methods, the dissemination to hunters of information on the applicable rules and obligatory presence of an inspector on board every hunting vessel.
32. In March 1989 the crew of the Harmoni had instituted defamation proceedings against Mr Lindberg before the Sarpsborg City Court, referring to statements which he had made about them in respect of the 1987 and 1988 hunting seasons. By judgment of 25 August 1990 the City Court declared five statements in his inspection report null and void under Article 253 § 1 of the Penal Code. Two other statements made by Mr Lindberg in another context were also declared null and void.
Moreover, the City Court prohibited Mr Lindberg from showing in public any of the footage pertaining to the Harmoni and ordered him to pay to the crew compensation (10,000 Norwegian kroner (NOK)) under the Damage Compensation Act 1969 and costs. His request for leave to appeal against the judgment was rejected by the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) on 16 May 1991.
33. Being resident in Sweden, Mr Lindberg opposed the execution in Sweden of the Sarpsborg City Court’s judgment of 25 August 1990, on the ground that it violated his right to freedom of expression under Article 10 of the Convention.
In a decision of 16 December 1998, the Swedish Supreme Court (Högsta Domstolen) upheld a decision by the Court of Appeal (Hovrätten) of Western Sweden of 25 April 1997, rejecting Mr Lindberg’s claim. While noting that it was not its role to carry out a full review of the Norwegian judgment, the Swedish Supreme Court found that the latter did not entail any breach of Mr Lindberg’s rights under Article 10. This provision did not, therefore, constitute an obstacle to execution. Nor did the fact that the film in question had been shown in Sweden mean that it would run counter to Swedish public-order interests to execute the Norwegian judgment.
34. On 15 May 1991 the crew members of the Harmoni also instituted defamation proceedings against the applicants, seeking compensation and requesting that certain statements appearing in Mr Lindberg’s report and reproduced by Bladet Tromsø on 15 and 20 July 1988 be declared null and void.
35. On 4 March 1992, after having heard the parties to the case and witnesses over a period of three days, the Nord-Troms District Court (herredsrett) gave its judgment in which it unanimously found the following statements defamatory under Article 247 of the Penal Code and declared them null and void (død og maktesløs; mortifisert) under Article 253 § 1 (the numbering in square brackets below follows that appearing in the Court’s reasoning):
(Statements appearing in the part of the Lindberg report published by Bladet Tromsø on 20 July 1988)
[1.1] “At 11.45 [a crew member] beat to death a female harp seal which was protecting her pup.”
[1.2] “At 14.40 [a crew member] beat to death a female harp seal which was protecting her pup.”
[1.3] “At 15.00 [a crew member] beat to death a female harp seal.”
[1.6] “At 19.00 [a crew member] killed a female which was protecting her pup.”
(Statements appearing in one of the articles published by Bladet Tromsø on 15 July 1988)
[2.1] “Seals skinned alive”
[2.2] “Not least the report includes an account of his (Mr Lindberg) being beaten up by furious hunters, who also threatened to hit him on the head with a gaff if he did not keep quiet.”
On the other hand, the District Court rejected the seal hunters’ claim with respect to the following statements published on 20 July 1988:
[1.4] “The same day [I] pointed out to the skipper that [a crew member] did not kill cubs in accordance with the regulations (i.e. he ... hit it with the spike [of the gaff] and then dragged the cub after him).”
[1.5] “At 15.00 [a crew member] beat to death a female harp seal which was protecting her pup.”
The District Court provided the following reasons:
“As regards the statements concerned, it is a basic condition for declaring these null and void that they be defamatory. This question must be considered in the light of how the statements were perceived by the ordinary newspaper reader. Moreover, the statements must not be interpreted separately. The decisive factor must be how they were understood when the articles were read as a whole. The position is somewhat different, however, as far as justification is concerned. The Court will revert to this matter below. Even though the statements are to be considered on the basis of an overall assessment, it would nevertheless be correct to accord weight to the fact that the matter was splashed across the front page in bold type. The first impression given was thus that something serious had occurred. This impression was not appreciably lessened or altered by the more detailed article inside the newspaper. This factor must be deemed particularly significant.
The Court finds it clear that both statements in question of 15 July 1988 are defamatory. One of them read: ‛Seals skinned alive’ (‘sel levende flådd’). This assertion must be understood to mean that the seal hunters committed acts of cruelty to the animals. It goes without saying that skinning an animal alive causes severe pain to it. When read as a whole, the statement must be understood to apply not only to one seal, but to several. It gives the impression that the seal hunters not infrequently skinned seals while they were still alive.
The other statement reads: ‘Not least the report includes an account of his being beaten up by furious hunters, who also threatened to hit him on the head with a gaff if he did not keep quiet’. This statement must imply that the seal hunters had assaulted Mr Lindberg, which, objectively speaking, amounts to a criminal act, cf. Article 228 of the Penal Code. The threat to hit him on the head with their gaffs if he did not keep quiet comes within the objective description of the offence set out in Article 227 of the Penal Code. The allegation must therefore be understood to mean that the seal hunters had committed two offences. Such a statement must clearly be considered defamatory.
As regards the statements concerning female harp seals, it is not disputed that such seal hunting was not permitted in 1988. Reference is made to items 1.1, 1.2, 1.3 and 1.6 of the allegations ...
Item 1.4 also concerns a violation of the seal hunting regulations. In this regard, reference is made to Article 8 b of the regulations, according to which the seal shall first be struck with the blunt end of the gaff and then with the spike. The reason for this is that the animals are to be knocked unconscious before they are killed with the spike. The statement must imply that the blows with the blunt end had been omitted.
A breach of the regulations constitutes a criminal offence. It is regarded as a misdemeanour and may be punished by a fine. Generally speaking, an allegation of such a violation must also be considered to be defamatory ...
In the Court’s view, the statements relating to the killing of female harp seals must be regarded as defamatory.
Hunting for this species of seal was not permitted at all in 1988. The statements do not differ from allegations of illegal hunting in general and imply that the crew behaved in a morally reprehensible manner. The Court will deal below with the question as to whether the statements can be regarded as substantiated and thus lawful.
The Court is, however, in doubt as regards the statement quoted in item 1.4. It is not alleged that the seal pups were made to suffer, but simply that the killing methods used were not in accordance with the regulations. Given that it is not alleged that the seal pups were made to suffer, the statement can hardly be interpreted as implying strong moral condemnation of the seal hunter. ... The decisive question is whether the killing is carried out in a responsible manner. The statement cannot be understood to mean that it was not. At any rate, given the fact that it was not suggested that the pups had been made to suffer, the matter must be regarded as trivial. The court has, with some doubt, reached the conclusion that the statement cannot be considered defamatory.
Accordingly, with the exception of item 1.4, the statements must fall within two of the situations described in Article 247 of the Penal Code, i.e. ‘to harm another person’s good name or reputation’, and ‘to expose him to ... loss of the confidence necessary for his position or business’. There can be no doubt that the statements were capable of having such effects. In this regard, the defendants have pointed out that considerable sympathy was shown to the crew during the ensuing public debate. The legal requirement is, however, that the statements were ‘capable’ of doing harm. The ensuing debate revealed that opinions about the hunting process differed.
There has been considerable opposition to seal hunting for a number of years, particularly at the international level. Although many people in Norway, especially in northern Norway, were opposed to Mr Lindberg, this did not automatically mean that there was a corresponding support for the seal hunters. The latter received media coverage because of their hunting methods, for which they are being remembered. Apart from this, the crew members were not much involved in the debate about other aspects of seal hunting, in particular, the ecological aspect of the debate was especially heated during the so-called seal invasions at the end of the 1980s.
It is undisputed that the group of persons to whom the statements apply is not so wide as to leave unaffected the individuals concerned. The defendants have thus not argued that deletion [of names] ensured sufficient anonymity. Even though the names of individual seal hunters had been deleted, it was clear that the Harmoni was the vessel at issue. Therefore, everyone who was on board must be seen as having been aggrieved by the statements ... In fact the deletion had an effect which was contrary to its purpose. In the report only four of the crew are named as having committed offences. If the newspaper had not deleted the names, the group of persons targeted would have been reduced correspondingly ...
Although the statements objectively fall within the scope of Article 247 of the Penal Code, it is also a requirement that they be ‘unlawful’ [rettsstridig]. In this regard the defendants have submitted several arguments. Firstly, it is argued that the seal hunting matter in Norway was probably the biggest news story in 1988. It is argued that in such a situation the press must enjoy a great deal of latitude in order to enable it to highlight all aspects of the matter (the ‘public interest’ point of view) ...
The Court accepts that an extensive freedom of expression must apply to discussion on matters of general public interest. This consideration is precisely the linchpin of Article 100 of the Norwegian Constitution and it is essential in a democratic society ... In spite of this, however, there are some limitations. Firstly, the Court has in mind that certain requirements relating to privacy and truth must be taken into account. ... All the statements complained of must be understood to mean that the crew of the Harmoni committed unlawful acts. This is the main theme of the newspaper articles of 15 and 20 July 1988.
It hardly appears to the Court that the newspaper’s presentation of the matter, particularly on 15 July, was primarily intended to promote a serious debate on matters of public interest. It focused on the criminal aspects. The public debate for and against seal hunting definitely remained in the background. The form in which the material was presented must also be taken into consideration. The affair was splashed across the front page in bold type. Words such as ‘lie’ are used in one of the headings of the articles that follow. The Court is definitely of the impression that the primary motive of the newspaper was to be the first to print the story. In particular the front-page article is of a sensational nature. Sufficient attention was not paid to the protection of other persons in this disclosure. The newspaper was also aware that the material was sensitive and had thus particular reason to proceed with caution. The journalist, Mr Raste, had been told, presumably on 13 July, during a telephone conversation with the Ministry of Fisheries, that the report was exempt from public disclosure. In the light of this, the Court cannot see that the newsworthiness of the matter could justify the manner in which it was presented.
Secondly, it has been argued that the publication concerns an official document. According to the newspaper, such documents are reliable sources which one should be able to trust. In this regard, reference is being made to Article 253 § 3 of the Penal Code. Generally speaking, the Court agrees that official documents must normally be considered as good journalistic sources. How good they are, however, depends on the circumstances. In the present case, the newspaper was aware that the report had been exempt from public disclosure and the reasons therefor. The Ministry wished to investigate the matter more closely before deciding whether to make the report public. Mr Raste was also aware that the allegation that seals had been skinned alive would sound like a tall story. Mr Raste himself kept sheep and had some insight into the killing of animals. In spite of this, the matter was given wide coverage. In the circumstances, the newspaper clearly should have investigated the matter more closely before printing the material. On the evidence adduced, the Court finds that no investigation had been made. In his testimony, Mr Gunnar Gran, Secretary General of the Norwegian Press Association, stated that, as a matter of press ethics, it was objectionable to print the allegation that seals had been skinned alive if Mr Raste was aware that it was untrue.
Statements based on an inspection report clearly fall outside the ambit of Article 253 § 3. This provision is exhaustive ...
... The defendants have invoked Article 10 of the Convention. In this connection what is called the ‘public interest’ point of view has been stressed. This may be described as the doctrine of unrestricted freedom of expression with regard to matters of public interest. Although the Court has in fact already dealt with this point, it sees reason to comment that the present case differs from the Sunday Times case and the Lingens v. Austria case.
The latter case concerned in particular the expression of political opinions. Mr Lingens, the editor, had used such expressions as ‘the basest opportunism’, ‘immoral’ and ‘undignified’ to describe certain aspects of Chancellor Bruno Kreisky’s character. These are value judgments and are not, like the statements in the present case, linked to facts ...
A defamatory statement which is true is not unlawful, cf. Article 253 § 1 and Article 249 § 1 of the Penal Code. In the present case, the defendants have admitted that, except in the case of one female harp seal, no proof has been adduced. However, it has been argued that Mr Lindberg produced photos showing that several female harp seals had been killed. Notwithstanding the said admission by the defence, the Court will assess the matter for itself. As regards item 2.1 of the allegations, it has clearly not been proved that the statement was true or probably true. On the contrary, Mr Raste was of the opinion that the statement had to be inaccurate. Mr Lindberg and Mr K. have submitted two different versions. As to item 2.2 there is no reason for the Court to give greater credence to Mr Lindberg than to Mr K. The Court cannot see that there are other circumstances that would support this statement. Thus there is no evidence to substantiate the statement.
As regards the killing of female harp seals the Commission of Inquiry states at p. 84 of its report: ‘Our conclusion is that we must regard the allegations about the killing of five female harp seals as highly improbable.’ It is, however, a fact that the Harmoni was carrying the skin of a female harp seal when it returned from the West Ice. [Crew member S.’s] explanation was that [crew member H.] had killed a harp seal pup. Its mother had been nowhere in sight. She had turned up afterwards and had attacked [H.]. He had become frightened and had tried to hit her on the nose with his gaff. He had, however, hit her too hard, so that she had started bleeding. The mother had been killed because of the blood. This is the matter referred to in item 1.5. The Court cannot see that the statement gives an objectively incorrect impression of what occurred. This does not imply that the Court finds that [H.] acted unlawfully. If he acted in self-defence, his action was not unjustified. This question the Court does not need to determine. Against this background the expression will not be declared null and void.
The other statements concerning female harp seals have not ... been substantiated by documentary evidence. The seal hunters deny that more than one female harp seal had been killed. In his testimony Mr Lindberg referred to photos which, in his view, substantiated the statements. He refused to produce the photos so that they could be assessed by experts. The day after [his] testimony ... an article appeared in ... Bladet Tromsø, accompanied by a photo of female harp seals. According to the seal hunters, the photo dated back to 1987, when such seal hunting had been permitted. The Court cannot base its decision on newspaper articles but only on what has taken place during the main hearing. Therefore it must be obvious that the other statements cannot be regarded as having been proved. Moreover, the Court is somewhat surprised by Mr Lindberg’s refusal to produce the photos in court.
To sum up, the Court observes that the conditions have been fulfilled for declaring null and void the statements cited in items 1.1, 1.2, 1.3, 1.6, 2.1 and 2.2 of the allegations. The expression cited in item 1.4 is not deemed to be defamatory, whereas that cited in item 1.5 is deemed to have been proved true.
It is not a requirement for declaring the statements null and void that the conditions for imposing a penalty have been fulfilled ... The Court will consider the question of liability when discussing the claim for damages.
The conditions for awarding damages are set out in sections 3-6, subsection one, of the Damages Compensation Act 1969 (Skadeerstatningsloven, 13 June 1969, no. 26) … Only [compensation for non-pecuniary damage] has been claimed. It is being specifically argued that the newspaper must be deemed to have acted negligently and that it would be reasonable if the Court were to make an award for non-pecuniary damage. In its assessment, the Court will attach weight to the existence of negligence as well as other circumstances. Thus, a number of factors are relevant to its determination of the compensation issue. In the Court’s view, the newspaper has behaved negligently. It had made no further investigation prior to the publication of the material in question, despite this having been called for in the circumstances. The Court has expressed its views on this point above. As regards the compensation claim, it must nevertheless consider the significance of the measures taken to preserve anonymity. The deletion of names did not mean that the crew members could not be identified. As the name of the vessel, Harmoni, was clearly stated, it was easy to find out the identity of the crew. The individual seal hunters were known to their neighbours, acquaintances, families, etc. The newspaper must have been aware of this. In any event, it ought to have known that there was a real risk that the persons in question would be identified.
The Court finds it reasonable that the plaintiffs be awarded compensation. The newspaper coverage caused such inconvenience to the crew members and damage to their reputation as to justify upholding their claim. A total of 2,999 seals were caught during the expedition to the West Ice. Even though it is probable that some violations of the seal hunting regulations occurred, the rendering of Mr Lindberg’s report gave a grossly distorted picture. The main impression is that the regulations were essentially complied with.
As far as [the second applicant] is concerned, sections 3-6 must be read in conjunction with Article 431 of the Penal Code. The editor was at his cottage at the time and was not fully aware of the contents of the matters printed. Nonetheless, he did consent to the material being printed. Mr Stensaas has not invoked the exception clause on freedom from liability. Accordingly, [he] must also be considered liable for the newspaper articles. This in turn will have a bearing on the compensation issue.
...
There are factors militating in favour of awarding a substantial amount in compensation: in the first place, certain statements in the preparatory work and, secondly, the degree of abusiveness of the material and the extent to which it was disseminated. In this connection it should be noted that Mr Lindberg has been ordered to pay each of the plaintiffs NOK 10,000 in compensation for non-pecuniary damage [see paragraph 32 above]. … In determining the amount, importance has been attached to the fact that the statements were widely disseminated. Given that this factor has already been taken into account, it must carry a little lesser weight in the case against the newspaper. Otherwise the crew would to some extent receive double compensation.
Moreover, the newspaper was aware that the material was sensitive and that one of the allegations was false. A further factor is the form in which the material was presented, as is the fact that no investigations had been made. In addition, the newspaper did not apologise for having printed the material.
A factor pointing in the opposite direction is, in particular, the fact that the crew members were permitted to express their views. Generally speaking, the seal hunting matter was one of the biggest news stories in 1988. This fact must be accorded some weight, although it does not free the newspaper from liability. In the light of the circumstances, the Court cannot see that importance should be attached to the fact that inspector reports are normally public documents. Mr Lindberg’s report had been exempt from public disclosure. Nor is it significant that the report was eventually also published by Fiskaren. This fact was only mentioned but was not elaborated upon during the main hearing. The Court has no knowledge of the context, circumstances, etc. The financial standing of [the first applicant] is of significance. The Court finds that the newspaper has been in somewhat strained circumstances for several years. Still its gross annual turnover is said to be approximately NOK 30 million.
Accordingly, each of the plaintiffs is to be paid NOK 11,000 in compensation, of which NOK 10,000 are to be paid by the newspaper, and NOK 1,000 by the editor. The newspaper is also jointly and severally liable with the editor for the amount he has to pay.”
36. On 18 March 1992 the applicants sought leave to appeal to the Supreme Court (Høyesterett), alleging that the District Court had made an error of law. On 18 July 1992, the Appeals Selection Committee of the Supreme Court decided not to allow the appeal, finding it obvious that the appeal would not succeed.
37. The crew of the Harmoni also brought defamation proceedings against other media companies, including the newspaper Aftenposten, its editor and journalist, in respect of an article published on 22 July 1988 on the seal hunting issue. The action did not relate to an article of 16 July 1988 in which Aftenposten reproduced Mr Lindberg’s statements, published by Bladet Tromsø, to the effect that seals had been flayed alive.
In a judgment of 1 February 1993 the Oslo City Court dismissed the action. The City Court found that, although the impugned article had contained several allegations that seal hunting regulations had been violated, the manner of journalistic reporting at issue could not be considered “unlawful” (“rettsstridig”).
The City Court stated, inter alia:
“Bladet Tromsø received the report from Mr Lindberg in July and published a major article on 15 July 1988, in which it was claimed that seals had been ‘skinned alive’. The article aroused great media interest. The Norwegian Telegram Agency ... issued bulletins on the seal hunting affair on 15, 18, 20 and 21 July. Aftenposten also followed up the affair, but most of its coverage was based on [those] bulletins. Aftenposten’s first article, published on 16 July, stated in an introductory paragraph: ‘Strong criticism of seal hunters’. In an evening issue on the same date it was stated: ‘Seal hunters must explain’. In the morning issue on 18 July the seal hunters had their say at p. 4, under the heading: ‘Seal hunters: never flayed seals alive’. Mr Kvernmo had stated to the newspaper that ‘we are shocked about Mr Lindberg’s allegations that we have skinned seals alive. ... He is of the view that Mr Lindberg has misunderstood the situation during the seal hunt and deplores that the crew has been blamed in his report to the Ministry of Fisheries.’ Furthermore, it is stated that ‘the allegation is so grotesque and removed from reality that a number of seal hunters have reacted very strongly against these. ‘Flaying seals alive has never occurred during the sixty seal hunt seasons in which I have participated’, says arctic shipowner, Mr Jacobsen. … On 19 July Aftenposten published an interview with seal inspector, Mr Nilssen, under the headline ‘Disagreement on killing methods applied to seal’. On 21 July it published an article entitled: ‘Seal hunting report without substantiated allegations’ …
To sum up, the Court considers the seal hunting case, as it stood on the evening of 21 July as follows:
Mr Lindberg’s report had aroused a great deal of interest. Its contents had been disputed by the seal hunters, a shipowner and the Ministry of Fisheries. All the different points of view had been reported in Aftenposten. Despite the refutations of the report made by the seal hunters and the Ministry of Fisheries, its contents had not been effectively and objectively refuted …
Aftenposten’s report on 22 July amounted to a continuation of the seal hunting debate which had already started. Attacks had been made against the report and these Mr Lindberg wished to counter, through the newspaper article – together with photographs. The debate was going on and it was only natural that Aftenposten allowed Mr Lindberg to present his version of the matter … The Court considers that Aftenposten’s article enabled the discussion to progress.
Aftenposten’s presentation is an objective, balanced account in defence of Mr Lindberg’s report. The article presents the evidence put forward by Mr Lindberg in support of the accuracy of the report and is an important element in the current seal hunting debate. Aftenposten focuses on the lawfulness of the existing seal hunting methods and has no intention of exposing the seal hunters to public contempt by means of malicious coverage ... The coverage clearly cannot be compared to the article printed in ... Bladet Tromsø on 15 July. The Court would also point out that Aftenposten fairly consistently refers to Mr Lindberg as its source. Although the heading, when seen together with the photos, suggests that there have been violations of the regulations and cruelty to animals, these violations are not particularly highlighted. The newspaper focuses on the seal hunting case. It should also be noted that on the following day the sealers were given an opportunity, in a conspicuous place, to refute the inspector’s report. This indicates that there was an ongoing debate on a matter of public interest in which the parties involved were, in a proper manner, given an opportunity to express their views. Aftenposten’s coverage of the seal hunting case is characterised precisely by reciprocity: Aftenposten maintained that, from a journalistic point of view, the coverage of 22 July was exemplary. The Court agrees with the newspaper’s view, particularly as regards the situation that obtained prior to the article published on 22 July.
The Court does not see any reason to examine whether Aftenposten has adduced proof. The Commission of Inquiry report … concludes that the regulations have clearly been breached. At p. 101, the Commission states:
‘We cannot avoid mentioning that during the period under consideration the implementation of the hunting regulations has been characterised by several defects which on the whole are not insignificant.’
The ensuing circumstances thus demonstrate that Aftenposten to a large degree could substantiate the allegations that the rules had been breached. Mr Lindberg’s report was not a serious work and suffered from a number of shortcomings, but parts of it proved later to be accurate.
Accordingly, the Court concludes that Aftenposten’s coverage was not unwarranted. It does not contain any unlawful defamatory statements ...”
The crew members’ appeal to the Supreme Court was not allowed. Their claim for compensation for non-pecuniary damage was further rejected by the Eidsivating High Court (lagmannsrett) in a judgment of 6 March 1995.
38. On 4 August 1993, in further defamation proceedings instituted by the crew of the Harmoni, the Oslo City Court declared null and void a statement to the effect that seals had been skinned alive, which had been transmitted by the Norwegian Broadcasting Corporation on 16 and 18 July 1988.
39. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under its Article 253 declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case.
40. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads:
“1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.”
“1. Når det har vært adgang til å føre bevis for sannheten av en beskyldning og beviset ikke er ført, kan den fornærmete forlange at beskyldningen blir erklært død og maktesløs (mortifisert) dersom ikke annet følger av lov.”
Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof.
Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy.
In recent years there has been a debate in Norway as to whether one should abolish the remedy of null and void orders, which has existed in Norwegian law since the sixteenth century and which may also be found in the laws of Denmark and Iceland. Because of its being deemed a particularly lenient form of sanction, the Norwegian Association of Editors has expressed a wish to maintain it.
41. The conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Article 247 of which provides:
“Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
“§ 247. Den som i ord eller handling optrer på en måte som er egnet til å skade en annens gode navn og rykte eller til å utsette ham for hat, ringeakt eller tap av den for hans stilling eller næring fornødne tillit, eller som medvirker dertil, straffes med bøter eller med fengsel inntil 1 år. Er ærekrenkelsen forøvet i trykt skrift eller i kringkastingssending eller ellers under særdeles skjerpende omstendigheter, kan fengsel inntil 2 år anvendes.”
42. A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
In a civil case concerning pre-trial reporting by a newspaper, the Supreme Court found for the newspaper, relying on the reservation of lawfulness (rettsstridsreservasjonen), even though the impugned expressions had been deemed defamatory. It held that, in determining the scope of this limitation, particular weight should be attached to whether the case was of public interest, having regard to the nature of the issues and to the kind of parties involved. Furthermore, regard should be had to the context in which, and the background against which, the statements had been made. Moreover, it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject-matter and the object of the case (Norsk Retstidende 1990, p. 636, at p. 640).
43. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads:
“Article 249
1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced.
…”
“§ 249.
1. Straff efter §§ 246 og 247 kommer ikke til anvendelse dersom det føres bevis for beskyldningens sannhet.
...”
44. As regards the requirement of proof under Article 249 § 1, the same standard which applies to the author of a libellous statement applies in principle also to a person who disseminates it. It is not clear under Norwegian law whether the criminal-law standard of proof beyond reasonable doubt or the civil-law standard of balance of probability applies. The applicants have referred to a judgment of the Supreme Court, in which it accepted the standard applied by the lower court in a criminal libel case concerning allegations made in a television programme and a newspaper that a private practising lawyer had recommended his spouse to commit tax offences in connection with a property sale. In view of the seriousness of the accusation, it was found appropriate in that case to apply the same standard of proof as would apply to a public prosecutor in criminal proceedings on tax evasion. Leading legal writers are of the opinion that the truth of a defamatory accusation of theft must, in order to discharge the defendant from liability, be proved according to the same standard as would apply to the prosecution in a theft case. According to Professor Mæland, it would be reasonable to increase the burden of proof according to the seriousness of the defamatory statement. Professor Andenæs and Professor Bratholm have expressed the view that, although there may be good reasons for imposing a strict burden of proof in libel cases, in certain circumstances it may be justified to apply a somewhat less strict standard than in criminal cases, for instance where the victim of the libel has behaved in a particularly reprehensible manner (see, H.J. Mæland, Ærekrenkelser, Universitetsforlaget, 1986, pp. 178-79; and J. Andenæs and A. Bratholm, Spesiell strafferett, Universitetsforlaget, 1983, p. 196).
VIOLATED_ARTICLES: 10


ITEMID: 001-104524
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CAVAJDA v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Jan Čavajda, is a Czech national who was born in 1962 and is serving his sentence in Valdice prison. He was represented before the Court by Mr O. Moravec, a lawyer practising in Hradec Králové. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment of 10 February 2005 the Hradec Králové Regional Court (krajský soud) found the applicant guilty of an attempted murder. On 21 April 2005 the Prague High Court (vrchní soud) quashed the judgment holding that the guilt of the applicant had not been yet proven beyond reasonable doubt and instructed the Regional Court to gather additional evidence.
After examining additional evidence, some of it suggested by the applicant, and having held a public hearing the Regional Court found again the applicant guilty of an attempted murder on 11 January 2006. The court found it established that the applicant had beaten his roommate with a stick and subsequently had made him to swallow a deadly amount of medicaments. The victim had not died only because of timely medical intervention. The applicant was sentenced to thirteen years’ imprisonment. The court based its decision on the testimony of several witnesses including the victim, on an expert medical report describing the injuries which the victim suffered and on a psychological and toxicological report of the victim and also a police report describing the crime scene. At the trial, the victim only referred to his testimony from the pre-trial proceedings, which was read out at the trial, but he answered all the questions given to him.
The applicant appealed arguing primarily that his guilt had not been proven beyond reasonable doubt.
On 7 March 2006 the Prague High Court (vrchní soud) at a public hearing upheld the first-instance judgment.
On 21 June 2006 the Supreme Court (Nejvyšší soud) rejected the applicant’s appeal on points of law as manifestly ill-founded.
The applicant lodged a constitutional appeal (ústavní stížnost) claiming a violation of his right to a fair trial and the right to liberty. He alleged that his conviction was based solely on the testimony of the victim and he disagreed with the assessment of evidence carried out by the courts. The Constitutional Court (Ústavní soud) requested observations from the ordinary courts and prosecutor’s offices which had previously been involved in the case. The Supreme Court, the High Court and the Regional Court only referred to their decisions and stated that they had not violated the applicant’s constitutional rights. The Supreme Prosecutor’s Office and the High Prosecutor’s Office waived their right to be parties to the proceedings. The Regional Prosecutor’s Office in its one-paragraph submission considered the constitutional appeal ill-founded without any elaboration and referred to the decisions of the ordinary courts. None of these observations were communicated to the applicant.
On 14 February 2007 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded holding that it was not a court of third instance. It added that the decisions of ordinary courts were logical and there was no appearance of arbitrariness. It further noted that it did not take the above observations into account as they did not bring anything new.
The relevant domestic law and practice concerning the procedure before the Constitutional Court are set out in the Court’s judgment in the case of Milatová and Others v. the Czech Republic (no. 61811/00, ECHR 2005V).