CEDH · CASELAW;REPORTS;ENG — 8 juillet 1993

.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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 15890/89                                Jens Olaf Jersild                                     against                                     Denmark                            REPORT OF THE COMMISSION                            (adopted on 8 July 1993)   TABLE OF CONTENTS                                                                         Page   I.           INTRODUCTION             (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . .1               A.     The application                   (paras. 2-4). . . . . . . . . . . . . . . . . . . . . .1               B.     The proceedings                   (paras. 5-10) . . . . . . . . . . . . . . . . . . . . .1               C.     The present Report                   (paras. 11-15). . . . . . . . . . . . . . . . . . . . .2   II.          ESTABLISHMENT OF THE FACTS             (paras. 16-26). . . . . . . . . . . . . . . . . . . . . . . .3               A.     The particular circumstances of the case                   (paras. 16-24). . . . . . . . . . . . . . . . . . . . .3               B.     Relevant domestic law                   (paras. 25-26). . . . . . . . . . . . . . . . . . . . 15   III.         OPINION OF THE COMMISSION             (paras.   27-46) . . . . . . . . . . . . . . . . . . . . . . 17               A.     Complaint declared admissible                   (para. 27). . . . . . . . . . . . . . . . . . . . . . 17               B.     Point at issue                   (para. 28). . . . . . . . . . . . . . . . . . . . . . 17               C.     Article 10 of the Convention                   (paras. 29-46). . . . . . . . . . . . . . . . . . . . 17               CONCLUSION             (para. 46). . . . . . . . . . . . . . . . . . . . . . . . . 21   DISSENTING OPINION OF MR. G. JÖRUNDSSON, JOINED BY SIR BASIL HALL AND MR. JEAN-CLAUDE GEUS . . . . . . . . . . . . . . . . 22   DISSENTING OPINION OF MRS. JANE LIDDY . . . . . . . . . . . . . . . . . 25   APPENDIX I :       TEXT OF THE BROADCAST OF 21 JULY 1985 . . . . . . . . 27   APPENDIX II :      HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . 33   APPENDIX III :     DECISION ON THE ADMISSIBILITY . . . . . . . . . . . . 34   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Danish citizen, born in 1959. He is a journalist and resides in Copenhagen. In the proceedings before the Commission the applicant is represented by Mr. Kevin Boyle, professor at the University of Essex, United Kingdom, and Mr. Tyge Trier, a lawyer practising in Copenhagen.   3.     The application is directed against Denmark. The respondent Government are represented by their Agent, Mr. Tyge Lehmann of the Ministry of Foreign Affairs.   4.     The case concerns the applicant's conviction of having aided and abetted the dissemination of racist remarks. The applicant considers that this conviction violates his right to freedom of expression and he invokes Article 10 of the Convention.   B.     The proceedings   5.     The application was introduced on 25 July 1989 and registered on 11 December 1989. On 7 October 1991 the Commission decided in accordance with Rule 48 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present their observations in writing on the admissibility and merits of the application.   6.     The Government submitted their observations on 20 December 1991. The applicant's written observations in reply were submitted on 17 February 1992.   7.     On 8 September 1992 the Commission attended a showing of the filmed feature as broadcast on 21 July 1985. It decided to declare the application admissible. The parties were then invited to submit any additional observations on the merits which they wished to make.   8.     On 5 December 1992 the Commission decided in accordance with Rule 53 para. 3 of its Rules of Procedure to obtain the parties' oral submissions on the merits of the case.   9.     The hearing took place on 6 April 1993. The applicant was present and was represented by Mr. Kevin Boyle and Mr. Tyge Trier, both as counsel. The Government were represented by their Agent, Mr. Tyge Lehmann, by Mr. Michael Elmer as counsel and by Mr. Laurids Mikaelsen, Ms. Julie Rechnagel, Mr. Johan Reimann and Mr. John Lundum as advisers.   10.    After declaring the case admissible the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case. Consultations with the parties took place between 11 September 1992 and 6 April 1993. In the light of the parties' reaction, the Commission now finds that there is no basis upon which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:               MM.    S. TRECHSEL, Acting President                   C. A. NØRGAARD                   F. ERMACORA                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS             Mrs.   G. H. THUNE             Sir    Basil HALL             MM.    F. MARTINEZ RUIZ                   C. L. ROZAKIS             Mrs.   J. LIDDY             MM.    J.-C. GEUS                   M. P. PELLONPÄÄ                   B. MARXER   12.    The text of this Report was adopted on 8 July 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   14.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix II and the Commission's decision on the admissibility of the application as Appendix III.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The Particular Circumstances of the Case   16.    Inspired by an article which appeared in the newspaper Information on 31 May 1985 the applicant decided to make a television programme which would describe the attitudes of a group of young people, who called themselves "the greenjackets" (grønjakkerne), in respect of racism at Østerbro in Copenhagen, and give a general description of the social standing of these young people. The applicant contacted representatives of the greenjackets, three of whom he invited to participate, in addition to a social worker responsible for the area, in a tape-recording of their viewpoints. The interview and its recording lasted between 5 and 6 hours resulting in 2-2 1/2 hours of tape and in the course of the interview, which was conducted by the applicant, the greenjackets spoke in abusive and derogatory terms about immigrants and ethnic groups in Denmark.   17.    The applicant subsequently edited and cut the interview to a filmed feature of a few minutes which was broadcast in Danmarks Radio's news magazine "Søndagsavisen" on 21 July 1985. The text of the broadcast (as to the original version see Appendix I) reads as follows:   (translation)    *       "In recent years, we have talked a great deal about racism       in Denmark. The papers are currently bringing stories about       distrust and resentment aimed at minorities. Who are they,       those who hate the minorities? Where do they come from? What is       their mentality like? Mr. Jens Olaf Jersild has visited a group       of extremist youths at Østerbro in Copenhagen.         The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are.         Are you a racist?         - Yes, that's what I regard myself as.       - It's good being a racist.       - We feel Denmark is for the Danes.   (A)    Henrik, Lille Steen and all the others are members of a group       of young people who live in Studsgårdsgade, called STUDSEN, at       Østerbro in Copenhagen. It is public housing, a lot of the       inhabitants are unemployed people on social security, the crime       rate is high. Some of the young people in this neighbourhood       have already been involved in criminal activities and have       received their first convictions.   (G)    - It was an ordinary armed robbery at a petrol station.   (A)     What did you do?   (G)    - Nothing. I just ran into a petrol station with a ... gun       and made them give me some money. Then I ran out again. That's       all.   (A)    What about you, what happened?   (G)    - I don't wish to discuss that further.   (A)    But, was it violence?   (G)    - Yes.   (A)    You have just come out of ... you have been arrested, what       were you arrested for?   (G)    - Street violence.   (A)    What happened?   (G)    - I had a little fight with the police together with some       friends.   (A)    Does that happen often?   (G)    - Yes, out here it does.   (A)    All in all, there are 20-25 young people from STUDSEN in the       same group.         They meet not far away from the public housing area near some       old houses which are to be torn down. Here, they meet to       confirm among other things their racism, hating the immigrants       and supporting the Ku Klux Klan.   (G)    - The Ku Klux Klan, that's something that comes from the States       in the old days during - as you know - the civil war and things       like that, because the Northern States wanted that the niggers       should be free human beings, man, they are not human beings,       they are animals, right, it's completely wrong, man, the things       that's happened. People should be allowed to keep slaves, I       think so anyway.   (A)    Because blacks are not human beings?   (G)    - No, you can also see it on their body structure, man, big flat       noses, with cauliflower ears etc., man. Broad heads and very       broad bodies, man, hairy, you are looking at a gorilla and       compare with an ape, man, then it is the same procedure, man,       it's the same movements, long arms, man, long fingers etc.,       long feet.   (A)    A lot of people are saying something different. There are a lot       of people who say, but ...   (G)    - Just take a picture of a gorilla, man, and then look at a       nigger, it's the same body structure and everything, man, flat       forehead and all kinds of things.   (A)    There are many blacks, for example, in the USA, who are holding       important jobs.   (G)    - Of course, there is always someone who wants to show off,       as if they are better than the white man, but in the long run,       it is the white man who is better.   (A)    What does Ku Klux Klan mean to you?   (G)    - It means a great deal, because I think it is right what       they do. A nigger, that is not a human being, it is an animal,       that goes for all the other alien workers as well, Turks,       Yugoslavs and whatever they are called.   (A)    Henrik is 19 years old and on welfare. He lives in a rented       room in Studsgårdsgade. Henrik is one of the strongest       supporters of the Klan, and he hates the foreign workers,       'Perkerne'.   (G)    - They come up here, man, and sponge on our society. But we,       we have enough problems in getting our social benefits, man,       they just get it. Fuck, we can argue with those idiots up there       at the social benefit office to get our money, man, they just       get it, man, they are the first on the housing list, they get       better flats than us, man, and some of our friends who have       children, man, they are living in the worst slum, man, they       can't even get a shower in their flat, man, then those       'Perkere'-families, man, go up there with seven kids, man, and       they just get an expensive flat, right there and then. They get       everything paid, and things like that, that can't be right,       man, Denmark is for the Danes, right?         It is the fact that they are 'Perkere', that is what we don't       like, right, and we don't like their mentality - I mean they       can damn well, I mean ... what's it called ... I mean if they       feel like speaking Russian in their homes, right, then it's       okay, but what we don't like, that is when they walk around in       those Zimbabwe-clothes and then speak this hula-hula language       in the street, and if you ask them something or if you get into       one of their taxis, in which you drive, then they say: I don't       know where it is, you give directions right.   (A)    Is it not so that perhaps you are a bit envious that some       of the 'Perkere' as you call them have their own shops, and       cars, they can make ends ...   (G)    - It's drugs they are selling, man, half of the population       who are in prison in 'Vestre' are in there because of drugs,       man, half of those in Vestre prison anyway, they are the people       who are serving time for dealing with drugs or something       similar.         They are in there, all the 'Perkere', because of drugs, right.       It must be sufficient, what's it called, there should not be       drugs here in this country, but if it really has to be smuggled       in, I think we should do it ourselves, I mean, I think it's       unfair that those foreigners come up here to ... what's it       called ... make Denmark more drug dependent and things like       that.         We have painted their doors and hoped that they would get fed       up with it, so that they would soon leave, and jumped on their       cars and thrown paint in their faces, when they were lying in       bed sleeping.   (A)    What was it you did with that paint - why paint?   (G)    - Because it was white paint, I think that suited them well,       that was the intended effect.   (A)    You threw paint through the windows of an immigrant family?   (G)    - Yes.   (A)    What happened?   (G)    - He just got it in his face, that's all. Well, I think he woke       up, and then he came out and shouted something in his hula-hula       language.   (A)    Did he report it to the police?   (G)    - I don't know if he has, I mean, he won't get anything out       of that.   (A)    Why not?   (G)    - I don't know, it's just kid's stuff, like other people       throwing water in people's faces, he got paint in his. They       can't make anything out of that.                                       ---   (A)    Per Axholt, known as 'Pax', is employed in the youth centre       in Studsgårdsgade. He has been employed there for several       years, but many give up a lot sooner because of the tough       environment. Per Axholt feels that the reasons why the young       people are persecuting the immigrants are because they are       themselves powerless and disappointed.         What do you think it is that they want, if you asked them?   *      - The same as you and I want. Some control over their lives,       some work which may be considered to be decent and which             they like, a reasonable economic result, a reasonably             functioning family, a wife or a husband and some children,             a reasonable middle class life such as you and I know it.   (A)    They do many things which certainly prevent them from getting       it.   (P)    - That is correct.   (A)    Why do you think they do this?   (P)    - Because they have nothing better to do. They have been told       over a long period that the means by which they achieve success       is through money. They won't be able to get money legitimately,       so often they try to obtain it through criminal activity.       Sometimes they succeed, sometimes not, and that's why we see a       lot of young people in that situation go to prison, because it       doesn't work.                                       ---   (A)    How old were you when you started your criminal activities?   (G)    - I don't know, about 14 I guess.   (A)    What did you do?   (G)    - The first time, I can't remember, I don't know, burglary.   (A)    Do you have what one might call a criminal career?   (G)    - I don't know if you can call it that.   (A)    You committed your first crime when you were 14.   (G)    - Well, you can put it that way, I mean, if that is a       criminal career. If you have been involved in crime since the       age of 15 onwards, then I guess you can say I've had a criminal       career.   (A)    Will you tell me about some of the things you have been doing?   (G)    - No, not really. It's been the same and the same. For example       video-pinching where the 'Perkere' were our customers, they       have money. If people want to be out here and have a nice time       and be racists and drink beer, and have fun, then it's quite       obvious you don't want to sit in the slammer.   (A)    But is the threat of imprisonment something that really deters       people from doing something illegal?   (G)    - No, it's not the prison, that doesn't frighten people.   (A)    Is that why you hear stories about people from out here fighting       with knives etc., night after night. Is the reason for this the       fact that they are not afraid of the police getting hold of       them?   (G)    - Yes, nothing really comes out of it, I mean, there is no       bad side-effects, so probably that's why. For instance fights       and stabbings and smashing up things ... If you really get into       the joint it would be such a ridiculously small sentence, so it       would be, I mean ... usually we are released the next day. Last       time we made some trouble over at the pub, they let us out the       next morning. Nothing really comes out of it. It doesn't       discourage us, but we were five, who just came out and then we       celebrated the last guy, who came out yesterday, they probably       don't want to go in again for some time, so big crimes, they       probably won't commit again.   (A)    You would like to move back to Studsgårdsgade where you grew       up, but we know for sure that it's an environment with a high       crime rate. Would you like your child to grow up like you?   (G)    - No, and I don't think she will. Firstly, because she is a       girl, statistics show that the risk is not that high, I mean       they probably don't do it, but you don't have to be a criminal       because you live in an environment with a high crime rate. I       just wouldn't accept it, if she was mugging old women and       stealing their handbags.   (A)    What if she was among those beating up the immigrants etc.       what then?   (G)    - That would be okay. I wouldn't have anything against that.                                       ---   (I)    We will have to see if the mentality of this family changes       during the next generation. Finally, we would like to say that       groups of young people have been created elsewhere in       Copenhagen like this one in STUDSEN at Østerbro."   18.    The broadcast and its contents led to an investigation being carried out by the police following a complaint submitted by the bishop of Ålborg to the Minister of Justice. On 19 February 1986 the Public Prosecutor instituted criminal proceedings against the three youths interviewed charging them with a violation of section 266 (b) of the Danish Penal Code by expressing in the filmed feature the following statements:   (translation)         "... the niggers should be free human beings, man, they are not       human beings, they are animals."         "Just take a picture of a gorilla, man, and then look at a       nigger, it's the same body structure and everything, man, flat       forehead and all kinds of things."         "A nigger, that is not a human being, it is an animal, that       goes for all the other alien workers as well, Turks, Yugoslavs       and whatever they are called."         "It is the fact that they are 'Perkere', that is what we don't       like, right, and we don't like their mentality ... what we       don't like, that is when they walk around in those Zimbabwe-       clothes and then speak this hula-hula language in the street."         "It's drugs they are selling, man, half of the population who       are in prison in 'Vestre' are in there because of drugs ...       they are the people who are serving time for dealing with       drugs."         "They are in there, all the 'Perkere', because of drugs."   19.    The applicant was charged with aiding and abetting the three youths, as was also the head of the news section of Danmarks Radio, in violation of section 266 (b) of the Penal Code read in conjunction with section 23 of the Penal Code.   20.    On 24 April 1987 the City Court of Copenhagen (Københavns Byret) found the three youths guilty of the charge brought against them. In its judgment in which the youths were referred to as A, B, and C the City Court stated inter alia:   (translation)         "As far as the defendant Mr. Jens Olaf Jersild is concerned it       is maintained, as stipulated in the indictment, that (he) has       rendered (himself) guilty of aiding and abetting the violation       of section 266 (b) of the Danish Penal Code. In this connection       attention is drawn to the fact that the defendant       Mr. Jens Olaf Jersild, on the basis of an article in       'Information' in which the group of young people in question,       the so-called greenjackets, inter alia stated their opinion on       'alien workers', took the initiative himself to invite these       young people to elaborate on their views in this respect in a       television programme. It is thus maintained that the defendant       Mr. Jens Olaf Jersild was fully aware of the racist viewpoints       of the young people in question and thus knowingly caused these       viewpoints to be broadcast indiscriminately in the television       programme. No balancing whatsoever of the viewpoints was made       in the programme e.g. by allowing other persons of a different       opinion to be heard. It should be noted that the interview with       Mr. Per Axholt, who worked as a club assistant in the youth       club 'Studsen', is of no relevance in this connection. During       the recording, during which Danmarks Radio served beer and       later paid so-called 'interviewee fees', the defendant Mr. Jens       Olaf Jersild did not, as a matter of fact, just play the role       of a 'passive microphone holder' as on one occasion when A       'lost the thread' he managed to bring the defendant back to the       basic point of view by stating in a inquisitorial manner:       'Negroes aren't people'.       ...       Counsel for the defendant Mr. Jens Olaf Jersild ... has claimed       acquittal even if a judgment should be delivered against the       defendants A, B, and C as the conduct of the defendant       Mr. Jens Olaf Jersild ... in no way can be compared with the       conduct of the three other defendants with whose points of view       Mr. Jens Olaf Jersild ... does not sympathise. The defendant       Mr. Jens Olaf Jersild ... just wanted to describe a fact in       society in a realistic way and, as a matter of fact, the       programme only caused disgust and aroused pity in respect of       the defendants A, B, and C, who were 'exposed to ridicule' on       their own conditions. Thus, it has in no way been Danmarks       Radio's intention to disseminate the points of view of the       greenjackets with a view to making others 'convert' to the same       viewpoints -on the contrary. For details concerning this       matter, it appears from the preparatory works of the (Penal       Code) inter alia that the section in question shall be subject       to a narrow interpretation in respect of the freedom of       expression just as reference is made to the original wording of       the Convention of 21 December 1965 of the United Nations       compared with a decision of the Norwegian Supreme Court of       25 September 1978. Furthermore, as held in the decision       reported in the Danish weekly law journal, UfR 1980/1065 V, it       is maintained that a distinction has to be made between the       persons making the statements and the editors and, as regards       the latter, a special freedom of expression applies.       Furthermore, according to the legislation it is in fact the       duty of Danmarks Radio - as a monopoly - to communicate all       views that might be of social interest and which are put       forward soberly in the speakers' own ways. Furthermore, it is       maintained that the purpose of introducing section 266 (b) of       the Penal Code was not to render the conduct of the defendant       Mr. Jens Olaf Jersild ... punishable; if so, this would be       atypical in substantive terms. Reference can e.g. be made to       the fact that the programme was part of a debate already in       progress in society which e.g. had resulted in articles in       'Information' and 'Ekstra Bladet'. The programme only covered       the actual conditions in a loyal way, and reality for the young       people in question was furthermore relevantly illustrated       through the interview with Mr. Per Axholt, the club assistant.       Finally, it is maintained that in cases of this nature the       prosecution does not follow a consistent practice in respect of       pressing charges; see e.g. the above-mentioned articles in       'Information' and 'Ekstra Bladet'. Furthermore, reference is       made to the general social interest in being informed of       attitudes notorious in society even where these cannot be       considered to be sympathetic.         The Court holds:         By way of introduction the Court finds that, on the basis of       the preparatory work of the Penal Code, section 266 (b) should       be subject to a narrow interpretation in such a way that the       provision does not apply to e.g. minor offences. Just as the       provision does not apply to scientific theories advanced on       racial, national or ethnic differences it must probably also be       assumed that it neither applies to statements which are not of       a scientific nature in the proper sense of the word but where       these statements are made in the course of an objective debate.         The statement made by the defendant A in the television       programme that 'niggers', 'alien workers' are animals, and the       statements made by the defendants B and C on drugs in relation       to 'Perkere' are found to insult and degrade a class of persons       on account of their race, colour, national or ethnic origins.       Consequently, they are found to have violated section 266 (b)       of the Penal Code. However, the other statements made by the       defendant B under the indictment are not found to be of such a       serious nature that they are punishable in pursuance of       section 266 (b).         When considering the conduct of the defendant       Mr. Jens Olaf Jersild ... the Court finds, on the basis of the       evidence given during the trial, that the defendant       Mr. Jens Olaf Jersild, following an article in 'Information' of       31 May 1985 in which inter alia the racist viewpoints of the       greenjackets were described, visited the greenjackets in       Studsgårdsgade and then, after a discussion with       Mr. Per Axholt, the club assistant, among others, agreed that       the defendants A, B, and C should participate in a television       programme. Furthermore, the Court finds that the object of the       television programme was to describe the attitude of the       greenjackets to racism at Østerbro - as stated in the article       in 'Information' - as well as to give a general description of       the social standing of these young people. The Court thus finds       that the defendant Mr. Jens Olaf Jersild took the initiative to       the television programme himself and it furthermore finds that       Mr. Jens Olaf Jersild beforehand knew that discriminatory       statements of a racist nature could be expected to be made       during the interview. In connection with the interview, which       took several hours during which beer was consumed and partly       paid for by Danmarks Radio, the defendant Mr. Jens Olaf       Jersild, is found to have encouraged the greenjackets to       express their racist viewpoints which, by being broadcast on       television, in itself implies a violation of section 266 (b) of       the Penal Code. Thus, by having aided and abetted the       dissemination of the above-mentioned statements in the       circumstances stated above - which were furthermore, without       any 'balancing' whatsoever, transmitted indiscriminately in the       television programme on the basis of the cutting of the       recordings made by the defendant Mr. Jens Olaf Jersild - the       defendant Mr. Jens Olaf Jersild is thereby found guilty of       having aided and abetted the violation of section 266 (b) of       the Penal Code."   21.    The three greenjackets did not appeal against the Court's judgment. The applicant, who was sentenced to a fine totalling 1,000 Danish crowns, appealed against it to the High Court of Eastern Denmark (Østre Landsret), before which he basically made the same submissions as in the City Court. He further explained that he beforehand suspected that the racist statements made in the programme were punishable. When he decided not to cut out these statements it was because he found it of the utmost importance to illustrate the actual attitudes of the so-called greenjackets. He did not warn the parties concerned against making the statements as he expected that they knew that they could be punished.   22.    On 16 June 1988 the High Court delivered its judgment. The majority, five judges, upheld the conviction, whereas one judge held that the applicant should be acquitted. The judgment reads as follows:   (translation)         "Also on the basis of the evidence produced in the High Court,       the Court finds it established that the defendant       Mr. Jens Olaf Jersild is guilty for the reasons stated in the       judgment of the City Court. These judges therefore find, as the       penalty in pursuance of section 266 (b), cf. section 23 of the       Penal Code is found to be appropriate, that the judgment should       be upheld ...         One judge, who agrees that the statements made must be deemed       to be punishable does not find that the defendant by       broadcasting the statements on television has transgressed the       bounds of the freedom of expression to which television and       other media must be entitled, considering the fact that the       object of the programme was to create a social debate and to       inform the public of the youth group's particular attitudes to       racism and the group's social standing."   23.    With leave to appeal the applicant appealed against this judgment to the Supreme Court (Højesteret). On 13 February 1989 the Supreme Court delivered its judgment. The majority, four judges, confirmed the applicant's conviction whereas one judge voted in favour of the applicant's acquittal. The judgment reads as follows:   (translation)         "Four judges hold:         The defendant has caused the publication of the racist       statements made by a narrow circle of persons which thereby       rendered them punishable and [he] has thus, as held by the City       Court and the High Court, violated section 266 (b) in       conjunction with section 23 of the Penal Code. These judges do       not find that the protection of freedom of expression in       respect of issues and events of general public interest as       opposed to the protection against racial discrimination in this       case could nevertheless justify an acquittal of the defendant.       These judges therefore vote in favour of upholding the       judgment.         (One judge) holds:         The object of the programme was to contribute to the       information on an issue - the attitude towards strangers -       which was the subject of an extensive and at times very       emotional debate. The programme must be presumed to have given       a clear picture of the viewpoints of the greenjackets which the       public thus had an opportunity to be acquainted with and make       up its mind about. Considering the nature of the viewpoints,       any countering during or immediately before or after the       interview would not have served a reasonable purpose. Even       though it concerned a relatively small group of people with       extreme viewpoints, the programme had a fair news and       information value. When assessing the conduct of the defendant       it is found that the fact that these viewpoints were       disseminated at [his] own initiative is not of the utmost       importance. In these circumstances and irrespective of the fact       that the statements are rightly considered to fall under       section 266 (b) of the Penal Code, I doubt the advisability of       finding the defendant guilty of aiding and abetting the       violation of the provision in question. I therefore vote in       favour of acquittal."   24.    Subsequently a commentary to the judgment, by one of the Supreme Court's judges who had participated in the case, was published in the official law journal on 20 January 1990. In this commentary the judge explained inter alia:   (translation)         "For the majority there was no doubt, which in fact also       applied to the minority, that the statements for which the       defendant had been convicted by the City Court of Copenhagen       and by the High Court had rightly been considered to fall under       section 266 (b) of the Penal Code.         As will be seen from the grounds given by the majority, it &#xa