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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> HOLM v. SWEDEN - 14191/88 [1993] ECHR 58 (25 November 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/58.html Cite as: (1994) 18 EHRR 79, 18 EHRR 79, [1993] ECHR 58

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In the case of Holm v. Sweden*,

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention")** and the relevant provisions of the Rules of Court,

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr A. Spielmann,

Mrs E. Palm,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 June and

25 October 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 44/1992/389/467. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court on 11 December 1992 by

the European Commission of Human Rights ("the Commission") and

on 15 February 1993 by the Government of the Kingdom of Sweden

("the Government"), within the three-month period laid down in

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 14191/88)

against Sweden lodged with the Commission under Article 25

(art. 25) by a Swedish national, Mr Carl G. Holm, on

24 January 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Sweden

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request and of the Government's

application was to obtain a decision as to whether the facts of

the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mrs E.

Palm, the elected judge of Swedish nationality (Article 43 of the

Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 29 January 1993 the

Vice-President, Mr R. Bernhardt, drew by lot, in the presence of

the Registrar, the names of the other seven members, namely

Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher,

Mr A. Spielmann, Mr A.N. Loizou, Mr J.M. Morenilla and

Mr L. Wildhaber (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, through the Registrar, consulted the Agent of the

Government, the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the Government's memorial on

5 May 1993 and the applicant's memorial on 10 May.

On various dates between 19 May and 10 June 1993 the

Commission filed a number of documents which the Registrar had

requested from it on the President's instructions. On 24 May the

Secretary to the Commission had informed the Registrar that the

Delegate would submit his observations at the hearing.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 22 June 1993. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr C.H. Ehrenkrona, Assistant Under-Secretary

for Legal Affairs, Ministry for

Foreign Affairs, Agent,

Mr G. Regner, Under-Secretary, Ministry of

Justice, Adviser;

(b) for the Commission

Mr Gaukur Jörundsson, Delegate;

(c) for the applicant

Mr B. Malmlöf, advokat, Counsel,

Ms P. Attoff, Assistant.

The Court heard addresses by Mr Ehrenkrona,

Mr Gaukur Jörundsson, Mr Malmlöf and the applicant himself.

AS TO THE FACTS

I. The particular circumstances of the case

A. Background

6. Mr Carl G. Holm is a Swedish national. He is an

economist and resides at Täby in Sweden. At the material time,

he was employed by the Swedish Federation of Industries (Sveriges

Industriförbund).

7. In 1974 the applicant formed together with others a

foundation named Contra. According to him its aim was to

scrutinise governments of communist regimes in Eastern Europe and

the Swedish Social Democratic Workers Party (Sveriges

socialdemokratiska arbetareparti - the "SAP").

8. In 1985 a publishing house, Tidens förlag AB, published

a book entitled "Till höger om neutraliteten" (To the right of

neutrality). It contained a survey of right-wing organisations

and individuals, including a 52-page chapter on the applicant and

his involvement in Contra. The author of the book,

Mr Sven Ove Hansson, was then employed by the publisher and had

previously served as an ideological adviser to the SAP.

Tidens förlag AB was, from its foundation in 1912 until

1 January 1985, owned by the SAP directly. As of the latter

date, 85% of its shares were held by a company owned by the SAP,

namely AB Förenade Arebolagen. The remaining 15% were held by

Folkparkernas Centralorganisation which, the applicant states,

was controlled by the SAP. Tidens förlag AB is known for

publishing books and articles portraying social democratic views.

B. Institution of libel proceedings

9. On 15 April 1986 the applicant brought a private

prosecution for aggravated libel (grovt förtal), and in the

alternative for libel (förtal), against Mr Hansson in the

District Court (tingsrätten) of Stockholm, under Chapter 7,

section 4, paragraph 9, of the 1949 Freedom of the Press Act

(tryckfrihetsförordningen, an instrument forming part of the

Swedish Constitution) and Chapter 5, Articles 1 and 2, of the

Penal Code (brottsbalken). In the same proceedings he sued both

the author and the publisher for damages, claiming

200,000 Swedish kronor. He contended that the book contained

allegations implying that he belonged to certain nazi and fascist

groups, calculated to cast doubt on his honour and to expose him

to contempt; in view of the wide distribution of the book and the

applicant's central position in the Swedish Federation of

Industries, the libel was aggravated.

The impugned passages of the book included allegations

which can be summarised as follows:

(a) in 1973 the applicant had chaired the youth section

of the World Anti-Communist League's Conference in London, an

organisation whose membership was said to consist largely of

neo-nazis and former SS-members, for example the then chairman

of the nazi-oriented Swedish National Union;

(b) the applicant had, by reason of his right-wing

extremism, been expelled in 1974 from the Democratic Alliance and

the Conservative Youth Organisation; it was therefore regrettable

that he still held important positions within the Swedish

Federation of Industries and the Swedish Employers' Federation;

(c) he had been reported to the police for embezzlement

of the Democratic Alliance's funds; an audit had shown that he

had transferred 1,340 Swedish kronor from the association's

account to his own account;

(d) he had failed to dissociate himself immediately from

a co-member of a splinter group of the Democratic Alliance, who

had provided grenades to two Nordic National Party activists and

who had urged the latter to place one of the grenades in an

office of the Democratic Alliance and advised them on how to

enter the office; the activists had been convicted of having

placed the grenades and the applicant's associate of having aided

and abetted causing bodily harm;

(e) Contra had been collaborating with the

above-mentioned Swedish National Union in Lund and Malmö and the

applicant had negotiated with the latter about the setting up of

a local Contra group;

(f) organisations like Contra were infiltrated to the

highest echelons by neo-nazi groups, which selected the most

militant members of such organisations and incited them to engage

in illegal activities.

C. Constitution of a jury before the District Court and

related proceedings

10. At a sitting held by the District Court on

10 November 1986, the defendants, but not the applicant, asked for

the case to be considered with a jury. As a result of the defendants'

request, the question whether a criminal offence had been

committed was to be examined, according to the provisions of the

Freedom of the Press Act, by a jury, composed on the basis of a

list of two groups of names (see paragraphs 15, 18 and 19 below).

The list, which had been published by the Stockholm County

Council (Stockholms läns landsting), indicated the jurors'

political affiliations. The first group comprised sixteen

persons, seven of whom were members of the SAP, five of the

Conservative Party, two of the Liberal Party, one of the Centre

Party and one of the Communist Party. The second group included

eight names, of whom four were members of the SAP, two of the

Conservative Party and two of the Liberal Party.

The applicant, referring to paragraph 9 of Article 13 in

Chapter 4 of the Code of Judicial Procedure (rättegångsbalken),

filed a complaint with the District Court under Chapter 12,

section 8, of the Freedom of the Press Act, asking it to exclude

as being disqualified those jurors who were members of the SAP

(see paragraph 21 below). In support of his request, he pointed

to the position as regards ownership of Tidens förlag AB (see

paragraph 8 above) and argued that the publisher was the

"mouthpiece" of the social democratic movement. However, the

District Court rejected his request on 10 November 1986, finding

that, regardless of whether the publisher could be seen as a

"mouthpiece" as described by the applicant, the reasons invoked

by him did not constitute grounds for disqualifying the jurors

concerned.

In an appeal against this decision to the Svea Court of

Appeal (Svea Hovrätt), the applicant submitted, in addition to

the above arguments, that the contents of the book were of a

political nature and that the case had political undertones. The

Court of Appeal dismissed the appeal on 4 December 1986, without

stating any reasons. It was not open to the applicant to appeal

further against this decision (Chapter 12, section 8, of the

Freedom of the Press Act).

11. In the meantime, at the above-mentioned sitting on

10 November 1986, the District Court proceeded with the

constitution of the jury in accordance with Chapter 12 of the

Freedom of the Press Act. Exercising their right under section

10, the applicant and the defence each rejected three jurors from

the first group and one from the second group. Those eliminated

by the applicant were all SAP members and those by the defendants

were members of the Conservative Party. Lots were drawn in

accordance with the procedure described in paragraph 19 below,

and a jury of nine members was constituted. Of these, five were

members of the SAP - one of the them was subsequently replaced

by another SAP member -, two of the Conservative Party, one of

the Liberal Party and one of the Communist Party.

12. As appears from information submitted by the applicant,

which was not contested by the Government, the SAP jurors were

active members of the Party, holding or having held various

offices in it and on its behalf at local level (for further

details, see paragraph 27 of the Commission's report).

D. The findings on the merits

13. On 14 October 1987, the District Court, sitting with

three judges and a jury of nine, examined the merits of the case.

In its judgment of the same date the court noted that the jury

had replied in the negative to the questions put to it concerning

the alleged unlawfulness of the impugned passages of the book.

Accordingly, the District Court dismissed the charges made by the

applicant and his claims for damages. In view of the conclusions

reached on the merits, it ordered him to pay 67,860 Swedish

kronor in costs.

It was not possible under Swedish law for the applicant

to appeal against the jury's verdict (see paragraph 16 below).

II. The relevant domestic law and practice

A. Freedom of the Press Act

14. In Sweden freedom of expression as regards the printed

word is regulated by the 1949 Freedom of the Press Act, which has

constitutional status. The first such Act dates back to 1766.

The jury system was introduced when a revised version of the Act

entered into force in 1812. The merits of the system underwent

a thorough examination in the course of the revision which led

to the 1949 version of the Act. However, the predominant view

was that the jury system constituted an important safeguard of

press freedom in Sweden and that it should be maintained. For

similar reasons, more recent proposals to abolish the jury system

have also been resisted.

1. Organisation and jurisdiction of Swedish courts

in proceedings relating to the freedom of the

press

15. Chapter 12 of the Act contains special provisions

governing judicial proceedings instituted to establish civil or

criminal liability for prohibited statements in print

(section 1). These cases are heard by the District Court within

whose jurisdiction the county administration has its seat (Chapter 12,

section 1). It sits with three judges and, in proceedings

brought under the Act, also with a jury of nine members to

examine whether a criminal offence has been committed or whether

civil liability has been incurred, unless the parties on both

sides declare their willingness to have the issue determined by

the court without a jury (sections 2 and 14). In any event,

matters such as evidence, sentencing, damages and legal costs are

dealt with by the judges alone.

In a jury trial the District Court is presided over by a

judge. If a jury has given a negative answer to the question

whether an offence has been committed or whether civil liability

has been incurred, the defendant must be acquitted or the case

must be dismissed. If the reply is in the affirmative - and this

requires a majority of at least six members - the issue is to be

examined also by the judges. Should they disagree with the jury,

they may acquit the defendant or apply a penal provision imposing

a less severe penalty than that applied by the jury or, in civil

proceedings, dismiss the case (sections 2 and 14).

16. A judgment by the District Court may be appealed against

to the Court of Appeal, whose jurisdiction, like that of the

District Court, is limited by the terms of the jury's verdict

(Chapter 12, section 2).

17. Chapter 1, section 4, provides that any person entrusted

with the task of passing judgment on alleged abuses of the

freedom of the press must constantly bear in mind the fundamental

character of this freedom in a free society; he should attach

more attention to whether an expression is illegal by reason of

its substance rather than its form and also to its purpose rather

than to the manner in which it has been represented; where there

is doubt, he should acquit rather than convict.

2. Election of jurors

18. In each county the county council, alone or in some cases

together with the municipal council, elects jurors for a term of

four years (Chapter 12, section 4). They are divided into two

groups, one of sixteen jurors and the other of eight, the latter

being composed of persons who hold or have held positions as lay

members of the ordinary or administrative courts (section 3).

The names of jurors are entered on a list in which each of the

two groups are listed separately (section 9).

Only Swedish citizens residing in Sweden are eligible for

election as jurors. A further condition is that they be known

to be independent and fair-minded and to have sound judgment.

Different social groups and currents of opinion as well as

geographical areas should be represented among the jurors

(section 5). In practice, jurors are normally elected from among

people who have been politically active.

3. Composition of a jury

19. In proceedings involving a jury, the District Court

presents the above-mentioned list of jurors to the parties and

queries whether there exist grounds for the disqualification of

any of the jurors (Chapter 12, section 10; see also paragraph 21

below). Thereafter, each party is given the opportunity to

exclude three jurors in the first group and one from the second.

Subsequently, the District Court, by drawing lots, selects the

substitute members until there remain six jurors in the first

group and three jurors in the second group; these nine jurors

become full members of the jury (Chapter 12, section 10).

B. Other legislation

20. Chapter 11, section 2, of the Instrument of Government

(regeringsformen), which forms part of the Swedish Constitution,

provides that neither a public authority nor Parliament may

determine how a court should adjudicate or apply the law in a

particular case. Moreover, all public power must be exercised

subject to the law; courts and public authorities shall, in the

performance of their functions, ensure the equality of all

persons before the law and remain objective and impartial

(Chapter 1, sections 1 and 9). These fundamental principles

apply also to a jury sitting in a trial under the Freedom of the

Press Act.

21. The statutory rules on disqualification of judges extend

to jurors (Chapter 12, section 10, of the Freedom of the Press

Act). Chapter 4, Article 13, of the Code of Judicial Procedure

enumerates a series of specific grounds on which a judge may be

disqualified: for instance, where he is a party in the case or

otherwise has an interest in its subject-matter or can expect

special advantage or damage from its outcome; or where he is

related through family or marriage to someone in such a position;

or has been involved in the case as judge, or as lawyer or

adviser to one of the parties or as witness or expert. Pursuant

to the last provision of this Article, paragraph 9, which was the

one relied on by the applicant in the domestic proceedings, a

judge must be disqualified if some other particular circumstance

exists which is likely to undermine confidence in his

impartiality in the case.

22. According to section 5 of the 1949 Act containing certain

provisions on Proceedings relating to the Freedom of the Press

(lagen 1949:164 med vissa bestämmelser om rättegången i

tryckfrihetsmål) jurors must take the following oath before

participating in a trial:

"I, N.N., solemnly swear and declare on my faith and

honour that, as a member of this jury, I shall to the

best of my ability answer the questions put by the court

and maintain total secrecy in respect of what has been

uttered during the jury's deliberations and how the

jurors have voted. This I will and shall faithfully

observe as an honest and upright judge."

C. Internal rules of political parties imposing duties of

allegiance

23. Clause 13 of the SAP's articles of association provides

that a member may be excluded if he is disloyal to the Party,

disseminates propaganda which is evidently in conflict with its

general object and purpose or is otherwise detrimental to its

interests. SAP candidates for public office are required to

contribute through their office to the implementation of the

Party's programme. Other political parties have similar rules.

On the other hand, none of the various party rules

produced to the Convention institutions contain specific

provisions imposing obligations as to the manner in which a

member ought to carry out his tasks as a juror. It appears from

the legislation summarised in paragraphs 20 to 22 above and the

preparatory works to the 1949 Freedom of the Press Act that he

is expected to perform this role with the same independence and

impartiality as a judge (see Statens offentliga utredningar -

"SOU" 1947:60, p. 194).

PROCEEDINGS BEFORE THE COMMISSION

24. In his application (no. 14191/88) filed with the

Commission on 24 January 1987, Mr Holm alleged that his case

against Mr Hansson and Tidens förlag AB was not determined by an

independent and impartial tribunal within the meaning of

Article 6 para. 1 (art. 6-1) of the Convention.

25. By decision of 9 January 1992, the Commission declared

the application admissible. In its report of 13 October 1992

(Article 31) (art. 31), the Commission expressed the opinion, by

fourteen votes to one, that there had been a violation of

Article 6 para. 1 (art. 6-1). The full text of the Commission's

opinion and of the dissenting opinion contained in the report is

reproduced as an annex to this judgment.*

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 279-A of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

26. At the hearing on 22 June 1993 the Government confirmed

the submissions set out in their memorial, in which they asked

the Court to hold that there had been no violation of the

Convention in the present case.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

27. Mr Carl G. Holm alleged that, owing to the participation

of five active SAP members in the jury at the District Court of

Stockholm, his case had not been heard by "an independent and

impartial tribunal" within the meaning of Article 6 para. 1

(art. 6-1) of the Convention, which in so far as relevant,

provides:

"In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and

public hearing ... by an independent and impartial

tribunal ..."

This claim was contested by the Government, but was

accepted by the Commission.

28. The Government disputed that the manner of composition of

the jury had given rise to a legitimate fear as to its

independence and impartiality. In their view, the question had

to be examined in the light of Sweden's legal system, its legal

traditions and political history. Since 1812 a jury system for

freedom-of-the-press cases has existed in Sweden; it had been

maintained, despite a number of proposals to Parliament to

abolish it, in order to safeguard press freedom from undue State

interference, in particular as regards political matters. The

jury system was seen as having constituted a crucial factor in

the development of democracy in Sweden.

In the present case there were admittedly certain links

between the five SAP members of the jury and the defendants.

However, these were only of a general political nature and ought

to be distinguished from those at issue in the case of Langborger

v. Sweden. In that case the Court found that a Housing and

Tenancy Court had failed to satisfy the requirements of

independence and impartiality in Article 6 para. 1 (art. 6-1),

mainly because two lay assessors who sat in the proceedings had

been nominated by, and had close links with, two associations

which both had interests contrary to those of Mr Langborger, a

party in the proceedings (judgment of 22 June 1989, Series A

no. 155, p. 16, para. 35). Unlike the lay assessors in the

latter case, the jurors in Mr Holm's case had no direct interest

in the outcome of the case, nor could the SAP be said to have had

any such interest. Moreover, it was not contended that the

jurors in question had a direct influence on or interest in the

defendant company. In fact, the only object of their role was

to ensure popular participation in the judicial process.

Finally, the Government submitted that decisive

importance should not be attached to the fact that under Swedish

law the jury had the final say in the event of an acquittal.

This rule, although it could be considered to favour the defence

in cases such as the present, was consistent with the principle

of according the printed word the benefit of the doubt, and hence

with the right to freedom of expression as guaranteed by

Article 10 (art. 10) of the Convention; indeed it might even go

further than the requirements of that Article (art. 10).

29. In the Commission's opinion, the applicant's doubts as to

the independence and impartiality of the District Court could,

in the specific circumstances of the case, be considered

objectively justified. It placed emphasis inter alia on the

links between the five SAP jurors and the two defendants in the

case and on the political nature of the disputed passages of the

book. It further noted the absence in the District Court's

judgment of reasoning indicating the objective basis for the

acquittal and the lack of a possibility of obtaining an effective

review of such a verdict on appeal.

30. In determining whether the District Court could be

considered "independent and impartial", the Court will have

regard to the principles established in its own case-law (see,

for instance, the above-mentioned Langborger judgment, Series A

no. 155, p. 16, para. 32; and the Fey v. Austria judgment of

24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and

30), which apply to jurors as they do to professional judges and

lay judges. Like the Commission, it finds it difficult in this

case to examine the issues of independence and impartiality

separately (see also the above-mentioned Langborger judgment,

ibid.).

31. It is only the independence and the objective

impartiality of the five jurors who were affiliated to the SAP

which are in issue; the applicant did not contest their

subjective impartiality, finding it impracticable to do so in

view of the secrecy of each juror's vote (see paragraph 22

above).

It is undisputed that the jurors in question were elected

in the prescribed manner by the competent elective body, in

conformity with the legal conditions for eligibility: namely that

the persons concerned be known to be independent and fair-minded

and to have sound judgment and also that different social groups

and currents of opinion as well as geographical areas be

represented among the jurors (see paragraph 18 above). 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 (see

paragraphs 10, 11 and 21 above). 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

applicant, albeit unsuccessfully, availed himself of this remedy

(see paragraph 10 above). 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 and

in a judicial manner (see paragraph 22 above).

Furthermore, jurors are in several respects viewed under

Swedish law as affording the same guarantees of independence and

impartiality as judges; in particular, the provisions in the

Instrument of Government that aim at safeguarding the

independence and impartiality of the judiciary cover juries and

the statutory rules on disqualification of judges also extend to

jurors (see paragraphs 20-21 above).

Accordingly, as indicated by the Commission and the

Government, there existed a number of safeguards to ensure the

independence and impartiality of the jurors in question.

32. On the other hand, the Delegate of the Commission

stressed that under the relevant rules the defence was given the

benefit of certain safeguards that were not applicable to the

applicant. In this regard, the Court observes the following.

Firstly, the defendants could opt for a trial by jury, despite

the fact that the applicant did not wish to have one; secondly,

an affirmative answer by the jury as to whether the impugned

statements in the book constituted an offence required the votes

of a special majority of six out of nine jurors (see

paragraphs 10 and 15 above). Lastly, the jury had the final say

in the event of an acquittal; had the verdict been against the

defendants the issue would have been the subject of further

review by the District Court judges (see paragraphs 13, 15 and

16 above). It thus appears that the applicant as a private

prosecutor was placed in a less favourable position than the

defence. However, these features, most of which are typical of

a criminal trial involving a jury and which were designed to

enhance freedom of the press, do not as such constitute a

legitimate reason to fear a lack of independence and impartiality

on the part of the jurors.

Nevertheless, it is to be noted that there were links

between the defendants and the five jurors who had been

challenged by the applicant which could give rise to misgivings

as to the jurors' independence and impartiality. The jurors in

question were active members of the SAP who held or had held

offices in or on behalf of the SAP (see paragraph 12 above). One

of the defendants, the publishing house Tidens förlag AB, had

been directly owned by the SAP until 1 January 1985 - the year

when the book was published; after that date, it was owned by the

SAP indirectly through two companies (see paragraph 8 above).

The other defendant, the author, was employed by the publishing

house at the time of the book's publication and had served as an

ideological adviser to the SAP (see paragraph 8 above).

Furthermore, Tidens förlag AB was known for publishing

articles portraying opinions shared by the SAP (see paragraph 8

above). The impugned passages of the book were clearly of a

political nature and undoubtedly raised matters of concern to the

SAP in that they involved criticism of the applicant and Contra,

an organisation which had been set up to scrutinise the SAP (see

paragraphs 7 and 9 above).

33. Having regard to the foregoing, the Court considers that

the independence and impartiality of the District Court were open

to doubt and that the applicant's fears in this respect were

objectively justified. Moreover, since the Court of Appeal's

jurisdiction, like that of the District Court, was limited by the

terms of the jury's verdict, the defect in the proceedings before

the latter court could not have been cured by an appeal to the

former (see paragraphs 13 and 16 above).

In sum, there has been a violation of Article 6 para. 1

(art. 6-1) in the particular circumstances of the present case.

II. APPLICATION OF ARTICLE 50 (art. 50)

34. Article 50 (art. 50) reads:

"If the Court finds that a decision or a

measure taken by a legal authority or any other

authority of a High Contracting Party is

completely or partially in conflict with the

obligations arising from the ... Convention, and

if the internal law of the said Party allows only

partial reparation to be made for the

consequences of this decision or measure, the

decision of the Court shall, if necessary, afford

just satisfaction to the injured party."

A. Non-pecuniary damage

35. Under this provision Mr Holm sought 400,000 Swedish

kronor for non-pecuniary damage. He submitted that there could

be no doubt that he had been under psychological pressure from

the book's publication until several years after the domestic

proceedings ended. The publication, which was reported in the

press, came at a very inconvenient time when he was about to

start a new job in a new town. Bringing proceedings against the

author and the publishing house had seemed to be the only means

of regaining credibility. However, he had had little prospect

of success, the jury being composed in the way it was. His

failure to win the case had attracted extensive media coverage

and had resulted in his encountering great professional

difficulties.

36. It is not for the Court to speculate on whether the

District Court would have arrived at a conclusion in the

applicant's favour had it been composed in a different manner.

In any event, the Court agrees with the Government that the

finding of a breach of Article 6 para. 1 (art. 6-1) constitutes

in itself adequate just satisfaction in this respect.

B. Legal costs

37. The applicant also requested reimbursement of 352,500

kronor under the head of lawyer's costs, of which 170,860 were

referable to the domestic proceedings and 181,640 to those before

the Convention institutions.

The Government agreed to pay only costs in respect of the

latter, the amount to be assessed on an equitable basis.

38. As to legal costs in the domestic proceedings, the Court

is of the view that it is only in so far as they related to his

contesting the ability of the SAP members on the list to take

part in the trial that they were necessarily incurred in order

to avoid the violation found of Article 6 para. 1 (art. 6-1) of

the Convention (see paragraphs 10 and 33 above).

With regard to the above costs and those referable to the

Strasbourg proceedings, the Court, making an assessment on an

equitable basis, considers that the applicant is entitled to

recover 125,000 kronor, from which 5,650 French francs already

received from the Council of Europe by way of legal aid must be

deducted.

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that there has been a

violation of Article 6 para. 1 (art. 6-1) of the

Convention;

2. Holds unanimously that Sweden is to pay, within three

months, 125,000 (one hundred and twenty-five thousand)

Swedish kronor to the applicant for legal costs, less

5,650 (five thousand, six hundred and fifty) French

francs to be converted into Swedish kronor at the rate

applicable on the date of delivery of the present

judgment;

3. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

25 November 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the

dissenting opinion of Mr Ryssdal and Mr Wildhaber is annexed to

this judgment.

Initialled: R.R.

Initialled: M.-A.E

DISSENTING OPINION OF JUDGES RYSSDAL AND WILDHABER

Reference has been made to the fact that the defendants

could opt for a trial by jury against the applicant's wishes,

that an affirmative answer by the jury as to whether the impugned

statements constituted an offence required the votes of a special

majority, and that the jury had the final say in the event of an

acquittal. However, such rules can certainly not constitute a

reason for fearing a lack of independence and impartiality on the

part of the jurors.

The sole criterion for election as a juror under the

Swedish system is that the person concerned must be known for his

or her soundness of judgment, independence and fair-mindedness.

The elected jurors are considered to represent the opinion of the

people in cases concerning freedom of the press. There is

nothing in the present case to indicate that the challenged

jurors did not fulfil this criterion.

The applicant has not contested the jurors' subjective

impartiality.

What remains to be determined is the extent to which

political involvement of a judge may, from an objective

standpoint, disqualify him from taking part in the examination

of a case having political implications. It has been taken for

granted by the Swedish legislator that jurors in their role as

adjudicators disregard their political opinions. If not, they

do not perform their duty to act with the same independence and

impartiality as judges. In this respect there is scarcely any

difference between a juror, an ordinary lay assessor and a

legally trained judge. They are all expected to perform their

duties in the courts with independence and impartiality. Under

various legal systems judges are appointed even though their

political leanings may be well known before their appointment.

It is true that it is normal practice in Sweden for

jurors to be elected among people with some political experience,

and for them to be or have been active as members of a political

party. Moreover, and somewhat strangely, their respective party

affiliation is marked against their names on the list of jurors.

The statutory rules on disqualification of judges in the

Swedish Code of Judicial Procedure also apply to any person

included on the list of jurors. Several specific grounds for

disqualification are enumerated in the code, and a judge shall

also be disqualified "if some other particular circumstance

exists which is likely to undermine confidence in his

impartiality in the case" (see paragraph 21 of the judgment).

Relying on this rule in the domestic proceedings the applicant

requested the District Court to disqualify all those on the list

of jurors who were members of the SAP, maintaining that Tidens

förlag AB was closely associated with the SAP. However, the

District Court came to the conclusion that the reasons invoked

did not amount to disqualifying circumstances for the jurors

concerned. The applicant appealed to the Svea Court of Appeal,

which rejected the appeal.

The District Court proceeded with the election of the

jury, which was composed of five members of the SAP and four

members of other parties.

Admittedly, the litigation in question was of a political

nature, but that is not exceptional where freedom of expression

is at stake. Moreover, the removal of all members of the jury

who could be said, for the sake of argument, to be prejudiced

against Holm could possibly have justified the defendants in

arguing that the jury was thereby prejudiced against them. On

that hypothesis, therefore, either the jury system had to be

abolished or a new system had to be devised.

In our opinion it cannot be assumed that the average jury

member is incapable of forming an independent and impartial view

as to the facts and the law. The specific circumstances in the

Holm case do not lead us to a different opinion. Accordingly,

we do not agree that the independence and impartiality of the

District Court were open to doubt, and that the applicant's fears

in this respect were objectively justified.