Full case report

Pedersen and Baadsgaard v Denmark (No.2)

Reference (2006) 42 EHRR 486
Court European Court of Human Rights

Judge Wildhaber (President), Rozakis, Costa, Bratza, Caflisch, Türmen, Strážnická, Bîrsan, Lorenzen, Casadevall, Zupan?i?, Hedigan, Pellonpää, Baka, Maruste, Ugrekhelidze & Hajiyev JJ

Date of Judgment 17 Dec 2004


Summary

Human Rights – Defamation – Libel – Article 10 – Freedom of Expression – Article 6 – TV Documentary about wrongful conviction – Journalists fined for defaming senior police officer – whether interference necessary in a democratic society


Facts

The applicants were journalists who had produced two television programmes investigating an alleged miscarriage of justice. Important witness evidence from a taxi driver was not introduced before the domestic Criminal Court and the Defendant was convicted of murder and sentenced to 12 years imprisonment. The Danish Court of Appeal subsequently ordered a re-trial based on this new evidence. The applicants had levelled a very serious charge of suppressing evidence against the named chief of police who brought defamation proceedings. Substantial compensation was awarded by domestic courts of first instance and appeal. The journalists’ appeal to the Chamber of the European Court of Human Rights was dismissed. The ECHRR held that the applicant’s libellous attack on the police chief’s reputation was a legitimate restriction on their Article 10 rights. The journalists appealed to the Grand Chamber that there had been violations of Articles 6 and 10.


Issue

Whether the Chamber should have found a violation of Articles 6 and 10 of the Convention.


Held

(1) Unanimously, there was no breach of Art 6.
(2) By 9 votes to 8 that there had not been a violation of Article 10. The applicants had made an allegation of fact about the Police Chief which was susceptible to proof. They had impugned the reputation of the police chief themselves and had not reproduced the statements of others. The basis of the allegation (the evidence of the taxi driver witness) was not adequately verified by the applicants (as it easily could have been). Neither was a procedural failure in the conduct of the investigation a sufficient factual basis for the accusation. The police may be the subject of wider limits of acceptable critcism but the allegation in this case—that the police chief had committed a serious criminal act—went beyond criticism of his command of the murder investigation. Accordingly, there was a “pressing social need” to take action under the applicable law in relation to that allegation.


Comment

A notable feature of this case was a strikingly contrasting dissenting judgment on the part of 8 of the Grand Chamber Judges. The dissenters could not agree with the majority that the questions posed by the applicants amounted to a factual allegation that the police chief had committed a serious crime under the Danish penal code. They preferred the view that the questions posed about the investigation left a series of possible answers that television viewers would arrive at for themselves. At the time the programme was made the applicants had a sufficient factual basis for believing the taxi driver’s evidence. The acts and omissions of a senior police chief, the dissenters opined, should be subjected to close and rigorous scrutiny.


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