CEDH · CASELAW;CLIN;ENG — 17 décembre 2004

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Denmark [GC] - 49017/99 Judgment 17.12.2004 [GC] Article 10 Article 10-1 Freedom of expression Conviction of producers of television programmes for defamation of a senior police officer: no violation Article 6 Criminal proceedings Article 6-1 Reasonable time Length of criminal proceedings (over 5 years 9 months): no violation Facts : The applicants produced two television programmes in 1990/1991 concerning the 1982 conviction of X. for murder. X. had been released from prison shortly before the first programme after serving almost eight years of a twelve-year sentence and had applied for his case to be reopened. In the television programmes, the conduct of the police investigation was strongly criticised. The second applicant interviewed a witness who maintained that she had told the police at the time that she had seen X. and his son at a particular place. After the interview, the commentator named the Chief Superintendent in charge of the investigation in the context of a series of rhetorical questions. A photograph of the officer was also shown. X. was subsequently granted a re-trial and acquitted. The applicants were then charged with defamation. On appeal, the High Court convicted them. It imposed a fine and ordered them to pay compensation. The Supreme Court upheld the convictions and increased the award of compensation. Law Article 6 § 1 – Making an overall assessment of the complexity of the case, the conduct of all concerned and the total length of the proceedings (over 5 years 9 months), the Court concluded that this did not go beyond what might be considered reasonable in the particular case. Conclusion : no violation (unanimously). Article 10 – The applicants were not convicted for alerting the public to supposed failings in the criminal investigation or for criticising the conduct of the police or individual officers, all of which were legitimate matters of public interest, but on the much narrower ground of having made a specific allegation against a named individual. The domestic courts found that the statements had to be understood as containing factual allegations and that the applicants had the requisite intention; they found that the applicants, by formulating their questions as they did, had made the serious accusation that the Chief Superintendent had committed a criminal offence by suppressing evidence. The Court agreed that the applicants had taken a stand on the truth of the witness’s statement and had presented matters in such a way as to give the impression that evidence had been suppressed. The applicants did not limit themselves to referring to the evidence and to making value judgments about the conduct of the police but made, albeit it indirectly, an allegation of fact susceptible of proof. They had never endeavoured to provide any justification for the allegation and its veracity had never been proved. Special grounds are required before the media can be dispensed from their obligation to verify factual statements that are defamatory of a private individual, and the Court therefore had to examine whether the applicants had acted in good faith and complied with that obligation. It was relevant that the allegation was made at peak viewing time on a national TV station and the Court also had to take into account the seriousness of the accusation, which not only prejudiced public confidence in the Chief Superintendent but also disregarded his right to be presumed innocent. The police enquiries against X. had involved more than 4,000 pages of reports and thirty witnesses had testified, yet the applicants had relied on one witness, without checking a discrepancy in her evidence. Even assuming the applicants’ programmes and the evidence of that witness were instrumental in the reopening of the proceedings, there was no support for the applicants’ theory about the suppression of evidence. In assessing the necessity of the interference, it was also important that the domestic courts had weighed the relevant considerations in the light of the Court’s case-law. The Court saw no cause to depart from the Supreme Court’s finding that the applicants lacked a sufficient factual basis for their allegation. Moreover, the fines imposed and the order to pay compensation were not excessive or such as to have a chilling effect. Consequently, the conviction of the applicants and the sentences imposed were not disproportionate. Conclusion : no violation (nine votes to eight).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes