CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 mars 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 13778/88                       by Thorgeir Thorgeirson                       against Iceland           The European Commission of Human Rights sitting in private on 14 March 1990, the following members being present:                 MM. S. TRECHSEL, Acting President                   J.A. FROWEIN                   G. SPERDUTI                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 19 November 1987 by Thorgeir Thorgeirson against Iceland and registered on 19 April 1988 under file No. 13778/88;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 26 June 1989 and the observations submitted in reply by the applicant on 21 August 1989 as well as the submissions of the parties at the hearing held on 14 March 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Icelandic citizen, born in 1933.   He is an author and resides at Reykjavík, Iceland.   Before the Commission he is represented by his lawyer, Mr.   Tómas Gunnarsson, Reykjavík.   A.       The particular facts of the case           In 1983 an incident occurred where a journalist was beaten up by the police in Reykjavík.   The responsible policemen were later prosecuted and convicted.   The incident was extensively covered in the press and it caused the applicant to publish two articles about police brutality in the daily newspaper Morgunbladid on 7 and 20 December 1983 respectively.   In these articles, of which the former was published in the form of an open letter to the Minister of Justice, a case was referred to where a young man had been seriously injured and hospitalised as a result of police brutality.   The applicant asked for an enquiry into the situation, he criticised the practice of letting policemen examine complaints against other policemen, but he admitted that there were also many good policemen and that an enquiry might show that the brutal ones were only a small minority.   The articles and their translation into English are attached as Appendices I and II.   Due to the contents of these articles, the association of policemen in Reykjavík requested the Public Prosecutor to investigate the matter.           On 21 May 1984, the Public Prosecutor, TB, decided to send the case to the State Criminal Investigation Police (SCIP) with the request to investigate whether there might have been a violation of Section 108 of the Icelandic Penal Code (offences against state officials).   The applicant was accordingly interrogated on 18 June 1984 at the SCIP headquarters.   During this interrogation the applicant was assisted by his lawyer.           On the basis of the investigation of the case, the Public Prosecutor, TB, issued a bill of indictment on 13 August 1985 whereby the applicant was charged with having published defamatory remarks against policemen in the two articles.   As regards the first article, the following passages were considered by the Public Prosecutor to be defamatory (translation):        1.   In paragraph 3: "uniformed beasts".        2.   In paragraph 6: "of those uniformed beasts".        3.   In paragraph 11: "The boy's room mate told me that his         injuries had been caused by bouncers of a restaurant         and some policemen.   I refrained from believing this         instantly so I inquired among the hospital staff         and, yes, right they were: there we had a victim         of the Reykjavík night squad."        4.   In paragraph 12: "Then I found out that most people         knew various stories about persons who had had a         similar or even worse experience with the uniformed         beasts.   Individuals had been brought back to the         intellectual capacity of a new-born child as a result         of choke-holds that policemen and bouncers learn and         use with brutal spontaneity instead of handling people         with prudence and care.   Such stories are so identical         in substance and abundant that you can hardly treat         them as simple lies any more."        5.   In paragraph 13: "victims of the police brutes".        6.   In paragraph 15: "allowing brutes and sadists to         practise their perverted mentality".           As regards the second article, the following passage was considered to be defamatory (translation):        1.   In paragraph 46: "Captain Bjarnason's behaviour was so         typical of what gradually is becoming the public         opinion of our police force in defence: bullish         falsifications, illegal actions, superstition, hasted         stupidity."           In the indictment it was finally stated that the afore-cited "defamatory passages", which were "directed against unnamed and undesignated members of the Reykjavík police force", were considered to violate Section 108 of the Penal Code.           The Chief Judge of the Reykjavík Criminal Court assigned the applicant's case to judge PG.   Previously PG had been employed as a deputy in the Office of the Public Prosecutor from 2 June 1976 until he was commissioned as judge of the Reykjavík Criminal Court on 25 July 1985, effective from 1 August 1985.   During that period PG had dealt with cases concerning violations of the Traffic Act, crimes of enrichment, sexual offences and assault cases.   The division of responsibilities at the Office of the Public Prosecutor had been such that PG had not dealt with cases against the Government or libel cases.   The applicant's case had been, and was, dealt with by senior staff, i.e. the Public Prosecutor, TB, himself or the Assistant Public Prosecutor, JS.   Other employees of the Public Prosecutor's Office had not been involved.           Judge PG decided that the case was to be filed in the Reykjavík Criminal Court on 10 September 1985 and the indictment was served on the applicant the day before, summoning him to appear.   At the applicant's request his arraignment was deferred to 17 September 1985.           The applicant's case was accordingly dealt with by the Criminal Court of Reykjavík presided over by judge PG on 17 September 1985 when counsel was appointed for the applicant as requested by him.   Counsel was granted time to acquaint himself with the case-file.           The Public Prosecutor did neither make an appearance during this court session nor when the case was brought up again on 24 September 1985.   During that session a record was made of counsel's statement to the effect that, since the Public Prosecutor had not made an appearance, he considered that the judge both represented the prosecution and performed the role of judge.   For this reason he motioned that PG yield his seat as judge in the case.   In a decision rendered by PG in court the next day counsel's claims and arguments were quoted verbatim whereupon the judge stated his opinion as follows:   "This case is not subject to prosecution and defence according to Section 130 of the Code of Criminal Procedure, no. 74/1974. (The applicant's) motion that the judge yield his seat is unsupported by any valid arguments and totally unfounded.   The judge is neither obliged nor allowed to yield his seat."           The request was made on behalf of the applicant that this decision be summarily appealed against to the Supreme Court of Iceland, but this was denied by the Public Prosecutor on the basis of the Code of Criminal Procedure (CCP), Section 171, on 26 September 1985.           The applicant then complained to the Ministry of Justice which, however, by letter of 18 October 1985, found no reason to support the applicant's plea.           The applicant's case was brought up in the Criminal Court during six sessions conducted by judge PG during the period 9 October 1985 to 28 April 1986.   The applicant and his counsel made an appearance in court every time and the Public Prosecutor, TB, made an appearance every time save one.   Documents were submitted, oral statements received and witnesses heard.   During the session on 28 April 1986 the declaration was made on behalf of the applicant that further investigation in court was not required.   Counsel was then afforded an opportunity to present a written defence and granted a period until 3 June 1986 for this purpose.   At the same time the Public Prosecutor declared that he would make no further submissions.   When the written defence had been presented on 3 June 1986 the case was received for adjudication.           On 16 June 1986 PG pronounced his judgment.   The applicant was found guilty of having violated Section 108 of the Penal Code and was sentenced to pay a fine of 10,000 Icelandic crowns to the State Treasury, alternatively to be detained for 8 days if the fine had not been paid within 4 weeks from the service of the judgment.   The applicant was, furthermore, ordered to pay all costs of the case, including fees to his defence counsel.           The applicant was present when the District Court judgment was pronounced and immediately declared that he appealed against the judgment to the Supreme Court of Iceland.   The Public Prosecutor also appealed against the judgment.   At the applicant's request the President of the Supreme Court, on 15 October 1986, appointed his defence counsel to represent him in the proceedings before the Supreme Court.   Subsequently, however, counsel requested to be relieved from his appointment whereupon, by letter of 4 March 1987 to the President of the Supreme Court, the applicant declared his intention of conducting his defence before the Supreme Court on his own.   He also asked the Supreme Court to consider 12 points concerning the District Court judge's handling of his case which he deemed important.   On 9 March 1987 the Court informed him that his request to defend himself was rejected.   Instead, a lawyer was appointed by the Supreme Court. The applicant protested against this, but in vain.           The applicant's case was heard in the Supreme Court on 22 September 1987.   He appeared but left again before the hearing commenced as he came to the conclusion, due to apparent misunderstandings, that the hearing had been postponed.   In his absence counsel requested the annulment of the District Court judgment and the entire procedure as from the issuance of the indictment, and that the case be referred back to the District Court for renewed adjudication.   In the alternative he requested acquittal of all charges.           In its judgment of 20 October 1987, the Supreme Court stated inter alia:   "In the first place the claim of annulment is based on the fact that the Criminal Court judge PG had been employed as deputy of the Public Prosecutor during the period when this case was investigated by the Office of the Public Prosecutor and thus had been disqualified from conducting the case and adjudicating it.   As no evidence has been produced of the Criminal Court judge having personally dealt with the case at the former stage the claim of annulment shall not be granted.   Secondly, the claim of annulment is based on the same points that had been presented to the Criminal Court on 24 September 1985 and the defendant's lawyer at that time had formulated the following note:   'The defendant's lawyer refers to the fact that no representative of the prosecution was present at the trial or at any former sessions in this case.   He also refers to the statements of the judge that the defendant's indication of the bill of indictment being a violation of Section 4 of the Law on Copyright No. 73/1972, had not been presented to the Public Prosecutor.   Referring to para. 1 of Section 20 of the Law 74/1974 and No. 1 of para. 1 of Section 36, the defendant considers the fact of one person performing the roles of both judge and prosecutor in the same case to be unlawful.   Considering the lack of initiative to modify this state of affairs, the replacement of the judge of this case is required.'   The Criminal Court judge rejected this request in a decision against which the Public Prosecutor did not authorise a summary appeal to the Supreme Court ...   No evidence has been produced on the proceedings of this case, which is categorised as a legally non-prosecuted case in accordance with Section 130 of the aforementioned law, that can justify a disqualification of the judge or the annulment of the appealed judgment.   The Criminal Court's decision about the defendant's guilt and its application of the penal law has to be confirmed. The penalty decided by the Criminal Court is to be confirmed.   The Criminal Court decision on the costs of the case shall be unaltered."           In a dissenting opinion one member of the Supreme Court stated as follows:   "In an action brought for penalties on account of defamatory utterances a clear and definite circumscription of those to whom the utterances are considered damaging is necessary. This is required both for the defence of the accused and for resolving the difficult question of what limitations have to be placed in this regard on discussion of matters of public concern.   The indictment in this case mentions in its introduction that the action is brought 'on account of defamatory allegations against policemen' and it is stated in its Section III that the defamatory allegations in question are directed 'against unnamed and undesignated members of the Reykjavík police force.'   The indictment must thus be understood as relating to an offence directed against policemen in Reykjavík generally. While agreeing that the utterances quoted in the indictment are harsh and have, as such, not been justified, I consider, by reference to the foundation laid by the indictment according to the above, that conditions for imposing penalties by reason of a violation of Article 108 of the General Penal Code, which is to be construed in the light of the fundamental principle of Icelandic constitutional law relating to freedom of expression in speech and writing, are not fulfilled.   According to the above I consider that the defendant should be acquitted of the charges of the prosecution authority, and that all costs of the case in the District Court as well as in the Supreme Court should be paid by the State Treasury, including the fees of the defendant's appointed cousel before the Supreme Court."   B.       Relevant domestic legislation           Section 72 of the Constitution of the Republic of Iceland, no. 33, of 17 June 1944, states the following:   "Every person has the right of expressing his thoughts in print.   However, he may be held responsible for them in court. Censorship or other limitations to the freedom of the press may never be enacted."           Apart from certain general legal provisions on defamation a special provision on the matter is found in Chapter XII, Section 108 of the Penal Code which reads as follows:   "Whoever vituperates or otherwise insults a public servant in words or actions or makes defamatory allegations against or about him when discharging his duty, or on account of the discharge of his duty, shall be fined, confined or imprisoned for up to 3 years.   An allegation, even if proven, brings fines if brought forth in an impudent manner".           The Constitution of the Republic of Iceland contains no provisions on the legal position of an accused person or on procedure in criminal litigation against him, which can be deemed relevant to the applicant's case.           The law on criminal procedure relevant for the present case is the Code of Criminal Procedure, Law no. 74 of 21 August 1974 (CCP).   Its Chapter II contains provisions stating that criminal court judges hear and pass judgment in criminal cases which are prosecuted in Reykjavík. According to Sections 1 and 4 of Law in respect of District Judicial Organisation, Police and Customs Administration, etc., no. 74 of 27 April 1972, which will remain in effect until 1 July 1992, the Reykjavík Criminal Court is one of three judicial tribunals in the area, with which nine judges shall be commissioned.   However, each of them works independently and on his own responsibility with the cases assigned to him, cf.   Section 9 subsection 3 of the Law.   One of the criminal court judges is commissioned as the Chief Judge of the Reykjavík Criminal Court and according to Section 9 subsection 2 of the Law he assigns cases to the other criminal court judges.           Chapter II of the CCP contains no specific provision on the disqualification of a judge from hearing a particular criminal case, but makes instead in Section 15 subsection 2 a general reference to Chapter II of the Code of Civil Procedure, Law no. 85 of 23 June 1936, which applies, i.a. on that point.   Section 36 of the Code of Civil Procedure provides inter alia that a judge shall yield his seat owing to disqualification if he is a party to the litigation, the representative of a party, if he is related to a party, if he has testified to the facts of a case or served as a surveyor or appraiser in connection with the case.   The Section furthermore provides that a judge shall yield his seat owing to disqualification if he has argued a case or provided counsel to a party, if he is hostile to a party, if the case is of financial or moral concern to himself or his relatives, or if there is otherwise a danger that he will not be able to consider the case impartially.   If a judge is disqualified according to these provisions the Minister of Justice appoints another qualified person to hear and adjudge the case.           According to Section 20 of the CCP authority of prosecution is vested in the Public Prosecutor.   He is assisted by the Assistant Public Prosecutor, by Prosecutors and by his deputies who are all subject to the Public Prosecutor's orders.   According to Section 21 of the CCP the Public Prosecutor determines how the investigation in criminal cases is to be conducted and directs and supervises it.   He brings criminal action, decides on the appeal of criminal cases and represents the prosecution in court as the CCP further provides.           Chapter V of the CCP contains provisions on the investigation of criminal cases conducted by the police.   According to Section 32 the Chiefs of Police are in charge of law enforcement, each within his area of office, and they may initiate investigations of suspected criminal acts on their own accord, according to information received or at the Public Prosecutor's request.   In this respect, however, they are always subject to the directions of the Public Prosecutor.   The State Criminal Investigation Police, to which a separate Act applies (no. 108 of 28 December 1976), also investigates criminal cases under the direction of its own Director.   According to that Act the division of responsibilities between the State Criminal Investigation Police and local Chiefs of Police is that in Reykjavík and a few other jurisdictions the State Criminal Investigation Police investigates offences other than offences against the Traffic Act and a few minor offences enumerated in the Act and in a Regulation based on it.   The State Criminal Investigation Police, which is also subject to the orders of the Public Prosecutor, initiates criminal investigations according to the principles described above.   According to Section 32 of the CCP the purpose of a police investigation, whether conducted by the State Criminal Investigation Police or a local agency, is to collect all evidence necessary to enable the Public Prosecutor, when it has been concluded, to decide whether a criminal case is to be filed.           Provisions on the filing of a criminal case and its prosecution in the District Court are found in Chapters XIV and XV of the CCP (Sections 112 to 138).   According to Section 115 the Public Prosecutor brings criminal action by an indictment in writing, specifying against whom and in what court of law the case will be filed, what the alleged offence is and what claims are made by the prosecution.   The indictment is sent to the court in question, with the case documents, and the person in charge, in Reykjavík the Chief Judge of the Reykjavík Criminal Court, assigns the case to a certain judge who writes on the indictment a statement specifying when the action will be brought.   The indictment is then served on the defendant.   According to Sections 121 and 122 of the CCP the judge exhibits the indictment and other documents when the case is filed and makes them available to the defendant.   If the defendant at this stage admits having committed the alleged offence the case will be adjudged there and then.   If not, the defendant is to be afforded the opportunity to bring forth evidence and to present a defence, in writing or orally, with the assistance of counsel as the case may be.           The part played by the Public Prosecutor in the procedure in other respects, when the defendant does not confess to the alleged offence, is determined by Section 130 of the CCP which states that a case is subject to prosecution and defence, i.e. by the attendance of the prosecuting authority in court, if the punishment of the offence may exceed eight years' imprisonment, if issues of law or fact recommend such procedure and punishment of the offence may exceed five years' imprisonment, if the case involves exceptionally important issues, or if its conclusion otherwise is of great public significance.   If a case is not subject to prosecution and defence according to these rules the procedure is governed by Sections 123 to 129 of the CCP.   The defendant's case is then presented before the judge, and the prosecuting authority does not make an appearance in court, unless the Public Prosecutor so decides.   If the prosecution does not make an appearance its interests are not actively protected.   According to Chapter X, Section 75 of the CCP the judge shall on his own accord and independently investigate all facts of the case, irrespective of whether police has investigated them and submitted reports on them previously, and irrespective of whether or not they relate to the defendant's guilt or innocence, or to mitigating or aggravating circumstances.   When this investigation has been completed and when evidence collected by the defendant or his counsel has been submitted, with a defence in writing, the District Court judge adjudges the case on the basis of the available documents and the claims made by the prosecuting authority and the defendant.           Section 177 of the CCP provides that when judgment in a criminal case has been rendered the defendant shall be asked, when the judgment is served, whether he appeals against the judgment to the Supreme Court of Iceland.   Criminal cases which have been appealed must always be prosecuted and defended orally before the Supreme Court, even if the provisions described above did not require the Public Prosecutor to make an appearance in the District Court.   The Supreme Court thus adjudges issues of fact and law as well as the question of sanctions as the appeal may require.   Before the Supreme Court a motion may also be made for voidance of the District Court procedure in its entirety or of the judgment only, and thus the case would be subject to renewed proceedings in the lower instance, partially or totally.           While a criminal case is being prosecuted in the District Court the judge may be required to pass decisions concerning particular issues which may be brought up.   Provisions of Chapter XXI of the CCP permit a summary appeal to the Supreme Court of such decisions passed by the District Court judge.   The defendant is free to appeal summarily to the Supreme Court against decisions on certain matters which are described in Section 172, but according to Section 171 the approval of the Public Prosecutor is required for summary appeals on certain other issues.   Among the decisions to which the latter provision applies are decisions on whether the District Court judge shall yield his seat. Even if the Public Prosecutor does not authorise a summary appeal against such a decision the defendant can always, on appeal to the Supreme Court, motion for the voidance of the District Court procedure owing to a disqualification of the judge.           Chapter IX of the CCP contains provisions (Sections 79 to 88) on the appointment of counsel to secure the interests of an accused person while a police investigation is being conducted, and on the appointment of defence counsel while a criminal case is being processed in the District Court.   Section 80 of the CCP provides that the District Court judge shall appoint counsel for the defendant if his case is subject to prosecution and defence before that instance according to Section 130, described above.   The judge shall, furthermore, appoint counsel for the defence without request on the part of the defendant if appraisers are required to give evidence in his absence, or if the defendant is, in the opinion of the judge, significantly lacking in awareness or understanding or suffering from sensory deficiencies, or if the defendant's condition or behaviour in court is otherwise of such nature that the judge considers the appointment of counsel desirable.            In other cases a defence counsel will generally be appointed at the request of the suspected or indicted person.   Normally the person nominated by the defendant will then be appointed defence counsel.   However, the judge has the power of decision in this regard. If the apppointment of defence counsel is not mandatory according to the above, the defendant may defend himself in person if he so wishes. If defence counsel has been appointed, whether by reason of legal requirements or at the defendant's own request, Section 135 of the CCP provides that the defendant may address the court himself when the defence counsel and, if applicable, the prosecutor have completed their speeches for the prosecution and the defence.           A criminal case shall, on appeal, always be prosecuted and defended orally before the Supreme Court.   The CCP contains no special provisions on the appointment of defence counsel before the Supreme Court, except for Section 179 which provides that the President of the Supreme Court appoints counsel for the defendant before that instance. When a case is appealed to the Supreme Court the principles described above concerning the appointment of defence counsel in the lower instance are applied in other respects.   According to Article 49 of the Law on the Supreme Court of Iceland, no. 75 of 21 June 1973, a party in litigation who does not present his case to the Court himself may, subject to the Court's permission, speak and make his comments when his counsel and his adversary have completed their oral submissions.   COMPLAINTS           Under Article 6 of the Convention the applicant complains that his case was not heard by an impartial tribunal in that the Criminal Court judge, in the absence of the Public Prosecutor, allegedly claimed to be representing the prosecution in addition to hearing the case.           Furthermore, the applicant complains, under this provision, that the judge in the Criminal Court had been the deputy of the Public Prosecutor during the period when his case was dealt with by the Public Prosecutor's Office.           The applicant finally complains that he was not allowed to defend himself in person in the Supreme Court.   He refers in this respect to Article 6 para. 3 (c) of the Convention.           Under Article 10 of the Convention the applicant complains of having been punished for the articles he published in exercise of his right to freedom of expression.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 19 November 1987 and registered on 19 April 1988.           The Commission decided on 10 March 1989 to bring the application to the notice of the respondent Government, inviting them to submit written observations on the admissibility and merits of the case.           The Government's observations were submitted on 26 June 1989 and the applicant's observations in reply were submitted on 21 August 1989.           Free legal aid was granted to the applicant on 27 July 1989.           On 4 October 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           At the hearing, which was held on 14 March 1990, the parties were represented as follows:   The Government   Mr.   Thorsteinn Geirsson,                 Secretary General of the Ministry                                         of Justice and Ecclesiastical                                         Affairs, as Agent   Mr.   Gunnlaugur Claessen,                 Solicitor General, as counsel   Professor Markús Sigurbjörnsson,         as adviser   The applicant   Mr.   Tómas Gunnarsson,                    Attorney-at-law, as counsel   The applicant was also present.   THE LAW   1.       The applicant has complained of the absences of the Public Prosecutor at some hearings before the District Criminal Court of Reykjavík and has alleged that the judge in that Court had claimed to be representing the prosecution in addition to hearing the case.   He has invoked Article 6 (Art. 6) of the Convention.           The Commission has examined this particular complaint under Article 6 para. 1 (Art. 6-1) of the Convention which reads insofar as relevant:   "In the determination of ... any criminal charge against him everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...".           The Commission has made a preliminary examination of the above complaint in the light of the parties' submissions and has come to the conclusion that it raises serious issues as to the interpretation and application of Article 6 para. 1 (Art. 6-1) of the Convention and that these    issues can only be determined after an examination on the merits.   This complaint cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and must be   declared admissible, no other reason for declaring it inadmissible having been established.   2.       Under Article 6 (Art. 6) of the Convention the applicant has also complained of the fact that the District Court judge had been the deputy of the Public Prosecutor during the period when his case was dealt with by the Public Prosecutor's Office.   He maintains that the judge cannot in such circumstances be considered to be impartial.           The European Court of Human Rights has stated that the guarantee of impartiality required by Article 6 (Art. 6) of the Convention    implies a double guarantee: first the subjective requirement that the    judge shall be unbiased, and secondly, an objective requirement that the situation must be such as to exclude any legitimate doubts about his impartiality (Eur. Court H.R., Piersack judgment of 1 October 1982, Series A no. 53, p. 14, para. 30).           As regards the subjective requirement, the Commission finds that no evidence has been adduced which could raise any doubts on this point.   In this context the Commission also recalls that the personal impartiality of a judge must be presumed until the contrary is established (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A No. 43, p. 25, para. 58).           As regards the objective requirement, the Commission recalls that in finding a violation of Article 6 para. 1 (Art. 6-1) in the Piersack case (mentioned above) the European Court of Human Rights considered that if "an individual, after holding in the Public Prosecutor's department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality" (p. 15, para. 30 (d)).   The impartiality of the tribunal which had to determine the merits of the charge was in such circumstances capable of appearing open to doubt.           On the other hand the Court stated in the same judgment:   "It would be going too far to the opposite extreme to maintain that former judicial officers in the Public Prosecutor's department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves.   So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the Public Prosecutor's department, would erect a virtually impenetrable barrier between that department and the bench.   It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence.   Above all, the mere fact that a judge was once a member of the Public Prosecutor's department is not a reason for fearing that he lacks impartiality."   (p. 14, para. 30 (b)).           In the present case the Commission recalls that judge PG was employed in the Public Prosecutor's Office while the present case was under investigation there.   However, it has been established that during the period in question the division of responsibilities was such that PG was in no way involved in the investigation regarding the applicant's case.           Furthermore, PG did not hold at that time any hierarchical position which would have entitled him to intervene in the case, for example, by revising written submissions, by directing the approach to be adopted or by instructing on points of law.           In such circumstances the Commission finds that the fact that judge PG had previously worked in the Public Prosecutor's Office could not create any legitimate doubts about his impartiality.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention the applicant has finally complained that he was not permitted to defend himself in person in the proceedings before the Supreme Court after his previous defence counsel had withdrawn from the case.           Under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, "everyone charged with a criminal offence" is entitled:   "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."           The Commission recalls, however, that the right to defend oneself is in no way an absolute right.   According to the Commission's case-law the above provision guarantees to an accused person that the proceedings against him will not take place without an adequate representation of the case for the defence, but does not give an accused person the right to decide himself in what manner his defence should be assured.   The choice between the two alternatives mentioned in the provision, namely the applicant's right either to defend himself in person or to be represented by a lawyer of his own choosing, or, in certain circumstances, one appointed by the court, may lie with the competent authorities (cf. No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50 with further references).   It is implied by the above interpretation that where an accused person is represented by a lawyer he must generally exercise his procedural rights through this lawyer.   It makes no difference in this respect whether the lawyer in question is a counsel of the party's own choice, or an ex officio or legal aid counsel.           In the present case the Commission recalls that at the request of the applicant his lawyer, Mr.   Gunnarsson, was appointed to represent him in the Supreme Court.   As he withdrew from the case, however, the applicant requested leave to defend himself which was refused by the President of the Supreme Court.   Subsequently a new defence counsel, appointed by the Supreme Court, argued the applicant's case before this Court.   The Commission has found no indication that the defence counsel appointed was prevented from acting or that he failed in his duties. Furthermore, the Commission recalls that under Icelandic law the applicant had the possibility to be present in the Supreme Court and to address the Court, although it appears that the applicant did not use these possibilities due to certain misunderstandings.           In these circumstances, and having regard to the above case-law, the Commission finds no appearance of a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention and it follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of (Art. 27-2) the Convention.   4.       The applicant has also invoked Article 10 (Art. 10) of the Convention which reads:   "1.    Everyone has the right to freedom of expression.   This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...   2.   The exercise of these freedoms, since it carries with it duties and responsibiities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."           The applicant maintains that his freedom of expression under the above Article has been interfered with by his being convicted and sentenced to pay a fine of 10,000 Icelandic crowns for having published two articles which concerned alleged police brutality.           In this respect, the Commission has taken cognizance of both parties' submissions and considers that the issue to be decided is whether the interference with the applicant's freedom of expression was justified for any of the reasons set out in the second paragraph of Article 10 (Art. 10).           The Commission has made a preliminary examination of the above aspect and has come to the conclusion that it raises serious issues as to the interpretation and application of Article 10 (Art. 10) of the Convention, and that these issues can only be determined after an examination on the merits.   This complaint cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and must be declared admissible, no other reason for declaring it inadmissible having been established.           For these reasons, the Commission           DECLARES ADMISSIBLE, without prejudging the merits           - the complaint concerning the absence of the Public Prosecutor           at certain court sessions during the applicant's trial and its           effect on the impartiality of the District Criminal Court of           Reykjavík, and           - the complaint concerning the interference with the applicant's           freedom of expression,           and           DECLARES INADMISSIBLE           - the remainder of the application.     Deputy Secretary to the Commission         Acting President of the Commission                 (J. RAYMOND)                                (S. TRECHSEL)   TRANSLATION   LET US CONSIDER NOW!   An open letter to Minister of Justice Jón Helgason   (from MORGUNBLADID 7.12.1983) by Thorgeir Thorgeirson   Honourable Minister of Justice:           Recently a problem that for several years had been bothering - if not obsessing - my mind, all of a sudden came into the spotlight of the press.   A journalist of your own very progressive party-newspaper - Tíminn - had a difficult experience and returned with some injuries from the jungle of the Reykjavík night-life.   Often the perils of the jungle and other alien regions can help us visualise the hardships that missionaries have had to endure.   This was the case with Stanley and Livingstone, even if they were rather preaching God's own Kingdom than the idea of the co-operative Utopia.           In our case one of your political missionaries, journalist Skafti Jónsson, met hardship in the jungle of the night and his facial injuries have clearly been exposed in four-column pictures in the press.   Of course we are scandalised when we see this.           We do not like to realise how our policemen have treated the handsome face of this journalist who tells us that he innocently was looking for his overcoat when the uniformed beasts of the aforementioned jungle attacked him.           In my mind Mr.   Jónsson's case is of little importance.   But as it has caught much attention and been widely discussed, I would like to use the opportunity to point out to you that the real problem is in fact bigger and much more horrifyi