CEDH · PRESS;GCJUDGMENTS;ENG — 17 décembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s48F8B750 { font-size:8pt; display:none } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS 643 17.12.2004   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT PEDERSEN AND BAADSGAARD v. DENMARK   The European Court of Human Rights has today delivered at a public hearing a Grand Chamber judgment [1] in the case of Pedersen and Baadsgaard v. Denmark (application no.   49017/99).   The Court held: unanimously, that there had been no violation of Article 6 (right to a hearing within a reasonable time) of the European Convention on Human Rights. by nine votes to eight, that there had been no violation of Article 10 (freedom of expression) of the Convention.   (The judgment is available in English and French.)   1.     Principal facts   The applicants, Jørgen   Pedersen and Sten Kristian Baadsgaard (now deceased), both Danish nationals from Copenhagen, were born in 1939 and 1942 respectively. Following Mr Baadsgaard’s death, the Court gave Trine Baadsgaard, his daughter and sole heir, leave to pursue the application.   At the material time the applicants were journalists with Danmarks Radio , one of Denmark’s two national television stations.   The case concerns the second of two programmes produced by the applicants about the trial of X, who had been sentenced to 12 years’ imprisonment after being found guilty of murdering his wife. The programmes criticised Frederikshaven Police’s handling of the investigation and explored whether there had been a miscarriage of justice.   The second programme, broadcast on 22 April 1991, highlighted the alleged failure by the investigating authorities to include in a statement taken from a taxi driver that she has seen X at around the time the murder was committed. The commentator on the programme asked: “Why did the vital part of the taxi driver’s explanation disappear and who in the police or public prosecutor’s office should carry the responsibility for this?... Was it [the named Chief Superintendent] who decided that the report should not be included in the case file? Or did he and the Chief Inspector of the Flying Squad conceal the witness’s statement from the defence, the judges and the jury?” The Chief Superintendent and Chief Inspector of the Flying Squad in charge of the investigation were named and photographs of them shown.   On 29   November 1991 the Special Court of Revision decided to reopen the murder case and, on 13 April 1992, X was acquitted. Following the television programmes, an inquiry was conducted into the police investigation, during which it was revealed that in general the police failed to comply with the statutory requirement for witnesses to be given an opportunity to read through their statements.   The two journalists were charged with defamation of the Chief Superintendent on 19 January 1993 and convicted on 15   September 1995. Their convictions were upheld on appeal to the High Court, which sentenced them to 20 day-fines of 400 Danish kroner (DKK) (approximately 53 euros (EUR)) and ordered them to pay DKK   75,000 (approximately EUR   10,000) compensation to the estate of the Chief Superintendent (who had since died). On 28 October 1998 the Supreme Court upheld their convictions, finding that the applicants lacked a sufficient factual basis for the allegation that the named Chief Superintendent had deliberately suppressed a vital piece of evidence in the murder case and increased the compensation to be paid to DKK   100,000 (approximately EUR 13,400).   2.     Procedure and composition of the Court   The application was lodged on 30 December 1998 and declared admissible on 27 June 2002.   In a Chamber judgment of 19 June 2003, the Court held, by six votes to one, that there had been no violation of Article 6 and, by four votes to three, that there had been no violation of Article 10. On 3 December 2003 the panel of the Grand Chamber accepted a request by the applicants for the case to be referred to the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg, on 8 September 2004.   The Danish Union of Journalists was given leave to submit written comments.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Nicolas Bratza (British), Lucius Caflisch (Swiss) [2] , Riza Türmen (Turkish), Viera Strážnická (Slovakian) Corneliu Bîrsan (Romanian), Peer Lorenzen (Danish), Josep Casadevall (Andorran), Boštjan M. Zupančič (Slovenian), John Hedigan (Irish), Matti Pellonpää (Finnish), András Baka (Hungarian), Rait Maruste (Estonian), Mindia Ugrekhelidze (Georgian), Khanlar Hajiyev (Azerbaijani), judges , and also Paul Mahoney , Registrar .   3.     Summary of the judgment [3]   Complaints The applicants complained about the length of the criminal proceedings against them. They also alleged that the judgment of the Supreme Court amounted to a disproportionate interference with their right to freedom of expression. They relied on Articles 6 § 1 and 10.   Decision of the Court   Article 6 The Court considered that the applicants were charged on 19   January   1993 and that the proceedings ended with the Supreme Court’s judgment of 28   October   1998. Making an overall assessment of the complexity of the case and the conduct of all concerned, the Court found that the length of the proceedings (five years, nine months and nine days) was not unreasonable and held unanimously that there had been no violation of Article 6 § 1.   Article 10 The Court noted that the applicant journalists were not convicted for alerting the public to possible failings in the criminal investigation made by the police, or for criticising the conduct of the police or of named members of the police force, or for reporting the taxi driver’s statements, all of which were legitimate matters of public interest. They were convicted for making the serious accusation that the named Chief Superintendent had committed a criminal offence during the investigation against X, by intentionally suppressing a vital piece of evidence in the murder case.   The applicants presented matters in such a way that viewers were given the impression that it was a fact that the taxi driver had given the explanation as she claimed to have done in 1981; that the police were therefore in possession of this explanation in 1981; and that this report had subsequently been suppressed. The Court noted that the applicants did not leave it open, or at least include an appropriate question, as to whether the taxi driver in 1981 had in fact given the explanation to the police that, nine years later, she claimed she had.   The applicants left the viewers with only two options, namely that the suppression of the vital part of the taxi driver’s statement in 1981 had been decided upon either by the Chief Superintendent alone or by him and the Chief Inspector of the Flying Squad jointly. In either case it followed that the named Chief Superintendent had been involved and that he had had therefore committed a serious criminal offence. The applicants did not leave it open, or at least include the appropriate questions, as to whether a report had been made containing the alleged statement by the taxi driver, and if so, whether anyone had deliberately suppressed it.   The Court further noted that the applicant journalists did not limit themselves to referring to the taxi driver’s testimony and to making value judgments based on her statement. The accusation against the named Chief Superintendent was an allegation of fact susceptible of proof. However, the applicants never endeavoured to provide any justification for their allegation, and its veracity had never been proven.   Neither were the applicants convicted for reproducing or reporting the statements of others. They drew their own conclusions from the statements of the witnesses, in particular that of the taxi driver. The allegation of deliberate interference with evidence, made at peak viewing time on a national TV station, was very serious for the named Chief Superintendent and would have entailed criminal prosecution had it been true. The offence alleged was punishable with up to nine years’ imprisonment. It inevitably not only prejudiced public confidence in him, but also disregarded his right to be presumed innocent until proven guilty according to law.   The applicants also relied on just one witness in particular, the taxi driver. Despite the fact that she appeared over nine years after the events took place, they did not check whether there was an objective basis for her timing of events.   Neither did the taxi driver at any point during the programme assert that the two police officers had definitely made a report containing her crucial statement; or that a report containing her crucial statement had been suppressed deliberately; or that it was the named Chief Superintendent who had intentionally suppressed the report.   The applicants had obtained a copy of the police report mentioning the taxi driver’s statement concerning what she saw on 12   December 1981, which did not contain any indication that something might have been deleted from it. Nor was there any evidence that another report had existed containing the taxi driver’s statement that she had seen X on the relevant day.   Notwithstanding a finding of a procedural failure in the conduct of the investigation in X’s case, it was not established that the taxi driver when interviewed in December 1981 had claimed to have seen X on the day of the murder; or that a report had been written containing such a statement; or that the existing police report of 1981 had not contained the taxi driver’s full statement; or that somebody within Frederikshavn Police had suppressed evidence in X’s case. Accordingly, in the Courts’ view, the procedural failure in the conduct of the investigation, whether taken alone or together with the taxi driver’s statement, could not provide a sufficient factual basis for the applicants’ accusation that the Chief Superintendent had actively tampered with evidence.   The applicant journalists submitted that their programmes and the taxi driver’s testimony had been a crucial element in the decision to re-try X and in his acquittal. However, counsel for X had already requested a re-opening of the trial on 13   September 1990, four days before the broadcast of the applicants’ first programme and more than six months before the second. The Special Court of Revision was also divided when the retrial was granted, in that only two judges out of five found that new testimonial evidence, including the taxi driver’s statement, had been produced on which X might have been acquitted had it been available at the trial. The re ‑ trial was granted nevertheless because the presiding judge found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been assessed correctly in 1982. Thus, the assertion that the applicants’ programmes or the taxi driver’s testimony were a crucial element in the later acquittal of X amounted to speculation.   The Court saw no cause to depart from the Supreme Court’s finding that the applicants lacked a sufficient factual basis for the allegation that the named Chief Superintendent had deliberately suppressed a vital piece of evidence in the murder case. The national authorities were thus entitled to consider that there was a “pressing social need” to take action under the applicable law in relation to that allegation. Neither did the Court find the penalties imposed on the journalists excessive in the circumstances.       Having regard to the foregoing, the Court considered that the conviction of the applicants and the sentences imposed on them were not disproportionate to the legitimate aim pursued, and that the reasons given by the Supreme Court in justification of those measures were relevant and sufficient. Finding that the interference with the applicants’ exercise of their right to freedom of expression could reasonably be regarded by the national authorities as necessary in a democratic society for the protection of the reputation and rights of others, the Court held, by nine votes to eight, that there had been no violation of Article 10.     Judges Rozakis, Türmen, Strážnická, Bîrsan, Casadevall, Zupančič, Maruste and Hajiyev expressed a joint partially dissenting [Note1] opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Judge elected in respect of Liechtenstein. [3]   This summmary by the Registry does not bind the Court. [Note1] The opinion types are: concurring, partly concurring, partly dissenting and dissenting.