CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.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. 21831/93                       by M. B. and T.M.S. AB                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 February 1993 by M. B. and T.M.S AB against Sweden and registered on 12 May 1993 under file No. 21831/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS   a.     The particular circumstances of the case         The first applicant, a Swedish citizen born in 1959 and resident in Stockholm, is a journalist.   He is employed by the second applicant, a publishing firm established in Stockholm.   Before the Commission they are represented by their lawyer, Mr. Ingemar Folke, Stockholm.         The facts of the case, as submitted by the applicants, may be summarised as follows.         The second applicant publishes the magazine "Svenska Hustler". Issue No. 1 of 1992 contained, under the headline "A peep at the celebrities' secret photo albums!", pictures in which the faces of well-known Swedish persons had been attached to other persons' bodies. The pictures depicted different sexual situations.   Among the persons whose faces had been so used were the leader, the secretary and another leading member of the Swedish Social Democratic Party (SAP), who had all been members of the Government which resigned after the general elections in September 1991.   The accompanying texts dealt with the sexual life of celebrities in general and the depicted persons in particular.   One picture showed the face of the party secretary which had been connected to a bare-breasted body dressed in lace underwear. A man caressing the body was saying "We would have been more successful if you had looked like this on the election posters".   Another picture depicted two bodies which were lying next to each other and to which the faces of the two other above-mentioned SAP members had been attached.   The man's left hand was placed on the woman's naked abdomen and the woman's right hand touched the man's genitals.   The accompanying text read "Now we finally have time to relax a bit more intimately".   In Issue No. 2 of 1992, the magazine published a photo of a woman's diaphragm on which the face of the above-mentioned party leader had been painted as an extension of the woman's abdomen.   The accompanying text referred to the party leader by using a vulgar word for the vagina.         Seven of the persons depicted in the two issues of the magazine, among them the three SAP members, instituted private proceedings for libel in the District Court (Tingsrätten) of Stockholm against the first applicant, who was the editor legally responsible for the publication of the magazine.   In the same proceedings, they also sued both applicants, claiming 250,000 SEK per person in damages for the publication of the first issue and 100,000 SEK for the second issue.         The plaintiffs requested that the case be adjudged by a jury in accordance with the procedure under the Freedom of the Press Act (Tryckfrihetsförordningen - hereinafter "FPA").   On 22 May 1992 a court session was held in order to select a jury from the list of jurors. The list, containing the names of 24 jurors, indicated the political affiliation of each juror.   The applicants requested the District Court to reject all eleven members of the SAP, recalling that three plaintiffs were leading members of that party.   In its decision to reject the applicants' request, the Court stated as follows:   (translation)         "The District Court finds that no grounds for       disqualification under Chapter 4, Section 13, subsections       1-8 of the Code of Judicial Procedure [(Rättegångsbalken)]       have been disclosed. Nor does the District Court find that       such particular circumstances exist which are likely to       undermine confidence in the eleven jurors' impartiality in       the case.   The request for disqualification is therefore       rejected.       ..."         The applicants appealed to the Svea Court of Appeal (Svea hovrätt), maintaining that the case was of a political nature, as there would have been no interest in publishing the faces of the politicians unless they were not leading members of the SAP, and that this considerably strained the impartiality of the jurors with the same political affiliation.   On 30 July 1992 the appellate court rejected the appeal without stating any reasons.   A further appeal was not open to the applicants.         The plaintiffs later withdrew their request for a jury but, instead, the applicants requested that the case be adjudged by a jury. On 28 August 1992 the District Court proceeded with the election of the jury.   The plaintiffs and the applicants excluded four jurors each from the list of jurors.   Then the Court, by the drawing of lots, appointed seven substitute jurors.   After one of the remaining nine jurors had been replaced by one of the substitute jurors, the jury consisted of nine people of which, according to the juror's list, five were members of the SAP, two were members of the Conservative Party (Moderata samlingspartiet), one was a member of the Liberal Party (Folkpartiet) and one was a member of the Centre Party (Centerpartiet).         On 15 and 16 October 1992 the District Court, sitting with three judges and the above jury, held a hearing in the case.   After the hearing the jury was asked whether the publication of the two issues of the magazine was criminal in respect of the respective plaintiffs. With regard to Issue No. 1, the jury found that the pictures and the text amounted to gross libel and gross insult of five of the plaintiffs, among them the three politicians, and of libel and gross insult of the remaining two plaintiffs.   The publication of Issue No. 2 amounted, according to the jury, to gross insult of the plaintiff, the party leader.         As the jury had found the first applicant guilty, the professional judges of the District Court also had to determine whether a criminal offence had been committed.   By a Court judgment of 23 October 1992, the judges found the first applicant guilty of gross insult with regard to the pictures and the text in Issue No. 1 and liable to pay a fine of 9,000 SEK.   It further ordered the applicants to pay damages in the amount of 50,000 SEK to each plaintiff.   The publication of Issue No. 2 was, however, found not to be criminal.   In its judgment, the Court stated that the publication of political caricatures, also those with sexual allusions, may, depending on the circumstances, be exempt from punishment even if they are grossly insulting to the persons in question.   This, however, requires that the purpose of the publication is to criticise or taunt society in a way which deserves the protection of the law.   The Court found that the pictures had not been published for such a purpose and that neither the pictures nor the accompanying text expressed any opinion of the persons depicted.   Instead, it concluded that the pictures and the text had been published to show how the persons in question would look in pornographic situations.   The Court did not find this purpose to deserve the protection of the law.   The applicants and the plaintiffs appealed to the Court of Appeal, the plaintiffs only with regard to the publication of Issue No. 1 of the magazine.         On 30 June 1993 the Court of Appeal upheld the District Court's judgment.   The appellate court stated, inter alia, that there was nothing in the published pictures and texts that could be regarded as satire and that no other reasons for concluding that the publication deserved the protection of the law had been disclosed.         The applicants and the plaintiffs requested leave to appeal to the Supreme Court (Högsta domstolen), which, by decision of 18 October 1993, granted the request.         By judgment of 16 November 1994, the Supreme Court found the first applicant guilty of libel and gross libel and sentenced him to a fine of 15,000 SEK.   It further ordered the applicants to pay damages in the amount of 100,000 SEK to each plaintiff.   The Court stated that the publication of the pictures and the text had not in any way been justifiable.   b.     Relevant domestic law         The procedure in trials concerning offences against the freedom of the press is regulated in the FPA.   It provides special court procedures concerning infringements of the Act.         The District Courts are composed of three legally trained and qualified judges and of a jury, unless both parties agree to refer the case to the court for decision without a jury.   The task of the jury is limited to examining the question whether a criminal offence has been committed (FPA, Chapter 12, Section 2).   It has no influence on the penal sanctions to be imposed or on the amount of damages.   These questions are decided by the professional judges.         The question whether a criminal offence has been committed is also considered by the professional judges, if the jury answers that question in the affirmative.   If the opinion of the judges differs from that of the jury, the judges are entitled to acquit the defendant or to apply a penal provision imposing a milder sanction than that applied by the jury.   If an appeal is lodged against the judgment of the District Court, the higher courts, which are composed only of professional judges, may not depart further than the District Court from the verdict passed by the jury (FPA, Chapter 12, Section 2).         Jurors are appointed for a term of four calendar years and are elected in each county (län) by the County Council (landstinget) (FPA, Chapter 12, Section 4).   The elected jurors shall be known for their soundness of judgment, independence and fair-mindedness.   Different social groups and currents of opinion and various parts of the county shall be represented among the jurors (FPA, Chapter 12, Section 5).         The provisions relating to the disqualification of judges apply also to the disqualification from a certain trial of any juror (FPA, Chapter 12, Section 10).   The grounds for disqualification of judges enumerated in Chapter 4, Section 13 of the Code of Judicial Procedure include the existence of any particular circumstance that is likely to undermine confidence in a judge's impartiality in a case.   A request for disqualification of a judge or a juror is decided by the District Court in accordance with Chapter 4, Section 15 of the Code.   Such a decision may be appealed to the Court of Appeal.         The jury is drawn from undisqualified jurors in the following manner: Each party has the right to exclude four jurors, and the court thereafter selects substitutes by lot among those remaining until nine jurors are left (FPA, Chapter 12, Section 10).         According to Section 5 of the 1949 Act on Certain provisions concerning the Proceedings in Freedom of the Press Cases (Lagen med vissa bestämmelser om rättegången i tryckfrihetsmål, 1949:164), the members of a jury have to take an oath before participating in a trial ensuring that he or she will carry out the tasks to the best of his or her abilities.   COMPLAINTS         The applicants maintain that the case against them was not heard by an independent and impartial tribunal, as there was a connection between the five District Court jurors who were members of the SAP and the three plaintiffs who were leading members of the same political party.   They invoke Article 6 para. 1 of the Convention.   THE LAW         The applicants claim that they were not heard by an independent and impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       or of any criminal charge against him, everyone is entitled       to a fair and public hearing ... by an independent and       impartial tribunal established by law. ..."         The applicants submit that the case had political implications in that the pictures of the three SAP members and the accompanying texts alluded to their roles in the Government and in the party.   The text next to the picture of the party secretary referred to the party's election posters and the text next to the picture of the other two SAP members hinted at the party's defeat in the recent general elections. The applicants further claim that the pictures and the texts aimed at criticising, through satire, these well-known politicians.   For these reasons, the applicants maintain that the participation of five SAP members in the District Court jury calls into question the independence and impartiality of that Court.         The Commission recalls that when the District Court decided the case in question, it was composed of three professional judges and nine jurors, of whom five were members of the SAP.   The independence and impartiality of the professional judges are not at issue.   It remains to consider the position of the five jurors being members of the SAP.         In order to establish whether a body can be considered independent, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.   As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf., e.g., Eur. Court H.R., Holm judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30, with further references).         In this case, the Commission finds it difficult to examine the issues of independence and impartiality separately.   It is further noted that the applicants have not challenged the subjective impartiality of the jurors.         As regards the objective test, the Commission notes that there existed a number of safeguards to ensure the independence and impartiality of the jurors in question.   They had been elected for four calendar years in conformity with the conditions for eligibility, which prescribed that they had to be known for their soundness of judgment, independence and fair-mindedness and also that different social groups and currents of opinion as well as geographical areas had to be represented among the jurors.   The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors. It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicants, albeit unsuccessfully, availed themselves of this remedy.   Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities.   Furthermore, the statutory rules on disqualification of judges also extend to jurors (cf. above-mentioned Holm judgment, p. 15, para. 31).         The above safeguards do not, however, exclude the possibility that the independence and impartiality of the jurors in a particular case may appear open to doubt.   What must be determined is whether there are ascertainable facts which may raise doubts in respect of the jurors' impartiality from an objective point of view and their appearance of independence.   What is at stake in this respect is the confidence which the courts in a democratic society must inspire in the public.   Accordingly, any juror in respect of whom there is a legitimate reason to fear partiality must withdraw.   This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular juror is partial, the opinion of the party involved is important but not decisive.   What is decisive is whether this fear can be held to be objectively justified.         The Commission recalls that in the present case there was a connection between five of the jurors and three of the plaintiffs in that they were all members of the same political party.   The applicants feared that this might influence the outcome of the case.   The question remains, though, whether this fear was objectively justified.         As regards the issue which the jury was called upon to consider, the Commission recalls that the published pictures depicted bodies which were engaging in sexual activities and to which the faces of well-known persons had been attached.   The Commission cannot find that the publication of the pictures and the texts in question in any way aimed at expressing political ideas or otherwise commenting on political issues.   Thus, the publication was not of a political nature, neither with regard to the pictures and the texts as such nor with regard to the purpose of their publication.   The Commission, therefore, considers that the political connection between five of the jurors and three of the plaintiffs does not disqualify the five jurors.         Having regard to the above, the Commission finds that in the specific circumstances of the case the independence and impartiality of the District Court sitting with a jury was not open to doubt and that the applicants' fears in this respect cannot be considered to be objectively justified.   Accordingly, the present application does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber   Acting President of the Second Chamber             (K. ROGGE)                         (G.H. THUNE)