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«CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS CASE OF PEDERSEN AND BAADSGAARD v. ...»

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CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF PEDERSEN AND BAADSGAARD v. DENMARK

(Application no. 49017/99)

JUDGMENT

STRASBOURG

17 December 2004

This judgment is final but may be subject to editorial revision.

PEDERSEN AND BAADSGAARD v. DENMARK JUDGMENT 1

In the case of Pedersen and Baadsgaard v. Denmark, The European Court of Human Rights, sitting as a Grand Chamber

composed of:

Mr L. WILDHABER, President, Mr C.L. ROZAKIS, Mr J.-P. COSTA, Sir Nicolas BRATZA, Mr L. CAFLISCH, Mr R. TÜRMEN, Mrs V. STRÁŽNICKÁ, Mr C. BÎRSAN, Mr P. LORENZEN, Mr J. CASADEVALL, Mr B. ZUPANČIČ, Mr J. HEDIGAN, Mr M. PELLONPÄÄ, Mr A.B. BAKA, Mr R. MARUSTE, Mr M. UGREKHELIDZE, Mr K. HAJIYEV, Judges, and Mr P.J. MAHONEY, Registrar, Having deliberated in private on 8 September 2004 and on 17 November 2004, Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 49017/99) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Jørgen Pedersen and Mr Sten Kristian Baadsgaard, both Danish nationals, on 30 December 1998. In the summer of 1999 the second applicant died. His daughter and sole heir, Trine Baadsgaard, decided to pursue the application.

2. The applicants complained about the length of criminal proceedings against them. They furthermore alleged that their right to freedom of expression had been violated in that the Supreme Court judgment of 28 October 1998 disproportionately interfered with their right as journalists to play a vital role as “public watchdog” in a democratic society

3. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 November 2001 the Court

2 PEDERSEN AND BAADSGAARD v. DENMARK JUDGMENT

changed the composition of its Sections. This case was assigned to the newly composed First Section. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as

provided in Rule 26 § 1. It was composed as follows:

Mr C.L. Rozakis, President, Mr P. Lorenzen, Mr G. Bonello, Mrs N. Vajić, Mr A. Kovler, Mr V. Zagrebelsky, Mrs E. Steiner, and judges, Mr S. Nielsen, Deputy Section Registrar. Third-party comments were received from the Danish Union of Journalists, which had been given leave by the president to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3). Following a hearing on admissibility and the merits (Rule 54 § 3), the Chamber declared the application admissible on 27 June 2002.

4. On 19 June 2003 the Chamber delivered its judgment in which it held by six votes to one that there had been no violation of Article 6 of the Convention, and by four votes to three that there had been no violation of Article 10 of the Convention. The dissenting opinion of Mr Kovler, and the partly dissenting opinion of Mr Rozakis, joined by Mr Kovler and Mrs Steiner, were annexed to the judgment.

5. On 18 September 2003 the applicants requested, pursuant to Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber, contending that the Chamber should have found a violation of Articles 6 and 10 of the Convention.

6. On 3 December 2003 the panel of the Grand Chamber decided to refer the case to the Grand Chamber.

7. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.

8. The applicants and the Government each filed memorials and supplementary memorials.

9. A hearing took place in public in the Human Rights Building, Strasbourg, on 8 September 2004 (Rule 59 § 3).

There appeared before the Court:

–  –  –

The Court heard addresses by Mr Trier and Mr Taksøe-Jensen.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The television programmes produced by the applicants

10. The applicants were two television journalists. At the relevant time they were employed by one of the two national TV stations in Denmark, Danmarks Radio. They produced two television programmes which were broadcast on 17 September 1990 at 8 p.m. and 22 April 1991 also at 8 p.m.

It was estimated that approximately 30 % of all viewers above the age of twelve years saw the programmes. The programmes, described as documentaries, were called “Convicted of Murder” (dømt for mord) and “The Blind Eye of the Police” (Politiets blinde øje) respectively and dealt with a murder trial in which on 12 November 1982 the High Court of Western Denmark (Vestre Landsret) had convicted a person, hereafter called X, of murdering his wife on 12 December 1981 between approximately 11.30 a.m. and 1 p.m. X was sentenced to 12 years’ imprisonment. Upon appeal the Supreme Court (Højesteret) upheld the sentence in 1983. On 13 September 1990, subsequent to his release on probation, X requested the Special Court of Revision (Den Særlige Klageret) to reopen the case.





The applicants had commenced the preparation of the programmes in March 1989, which entailed establishing contact with witnesses through advertising in the local paper and via police reports.

11. At the outset of both programmes it was stated that they had been

produced on the following premise:

“In the programme we shall provide evidence by way of a series of specific examples that there was no legal basis for X’s conviction and that by imposing its sentence, the High Court of Western Denmark set aside one of the fundamental tenets

4 PEDERSEN AND BAADSGAARD v. DENMARK JUDGMENT

of the law in Denmark, namely that the accused should be given the benefit of the doubt.

We shall show that a scandalously bad police investigation, in which the question of guilt had been prejudged right from the start, and which ignored significant witnesses and concentrated on dubious ones, led to X being sentenced to 12 years’ imprisonment for the murder of his wife.

The programme will show that X could not have committed the crime of which he was convicted on 12 November 1982”.

1. The first programme “Convicted of Murder”

12. At an early stage in the first programme, “Convicted of Murder”, the

following comment was made:

“In the case against X, police inquiries involved about 900 people. More than 4,000 pages of reports were written – and 30 witnesses appeared before the High Court of Western Denmark.

We will try to establish what actually happened on the day of the murder, 12 December 1981. We shall critically review the police’s investigations and evaluate the witnesses’ statements regarding the time of X’s wife’s disappearance.” As part of the preparation of this first programme, the applicants had invited the police in the district of Frederikshavn, who had been responsible for the investigation of the murder case, to take part in the programme.

Having corresponded on this subject for some time, the Chief of Police informed the applicants by letter of 19 April 1990 that the police could not participate in the programme as certain conditions for giving the interview had not been complied with, inter alia that the questions be sent in writing in advance,

13. Subsequent to the broadcast on 17 September 1990 of the first programme “Convicted of Murder”, the applicants were charged with defamation in that in the programme they had unlawfully connected the boyfriend of X’s wife (“the school teacher”) to the death of two women referred to in the programme, one being X’s wife. The defamation case ended on 14 December 1993 before the High Court with a settlement, according to which the applicants were to pay the school teacher 300,000 Danish kroner (DKK), apologise unreservedly, and give an undertaking never to broadcast the programme again.

2. The second programme “The Blind Eye of the Police”

14. The applicants alleged that the Chief Superintendent, at some unknown time before the broadcast of the second programme, during a telephone conversation with the applicant Pedersen, had declined to participate in the programme.

PEDERSEN AND BAADSGAARD v. DENMARK JUDGMENT 5

15. In the introduction to the second programme, “The Blind Eye of the

Police”, the following comment was made:

“It was the police in the district of Frederikshavn who were responsible at that time for the investigations which led to the conviction of X. Did the police assume right from the start that X was the killer and did they therefore fail to investigate all the leads in the case, as otherwise required by the law?

We have investigated whether there is substance in X’s serious allegations against the police in the district of Frederikshavn.”

16. Shortly afterwards in the programme the second applicant interviewed a taxi driver, who explained that she had been interviewed by two police officers a few days after the disappearance of X’s wife, and that during this interview she had mentioned two observations she made on 12 December 1981: she had seen a Peugeot taxi (which was later shown to have no relevance to the murder), and before that she had seen X and his son at about 5-10 minutes past noon. She had driven behind them for about one kilometre. The reason why she could remember the date and time so exactly was because she had had to attend her grandmother’s funeral on that date at 1 p.m.

17. The following comment was then made:

Commentator: So in December 1981, shortly after X’s wife disappears and X is in prison, the Frederikshavn Police is in possession of the taxi driver’s statement in which she reports that shortly after 12 o’clock that Saturday she drives behind X and his son for about a kilometre...So X and his son were in Mølleparken [residential area] twice, and the police knew it in 1981.

18. The interview went on:

“Second applicant: What did the police officers say about the information you provided?

Taxi driver: Well, one of them said that it couldn’t be true that X’s son was in the car, but in fact I am 100% certain it was him because I also know the son because I have driven him to day-care.

Second applicant: Why did he say that to you?

–  –  –

Second applicant: That it couldn’t be true that you saw what you saw.

Taxi driver: No, that is, he didn’t say that I hadn’t seen X, it just couldn’t be true that the son was with him.

Second applicant: These were the two police officers who questioned the taxi driver in 1981 and it was they who wrote the police report.

We showed the taxi driver her statement from 1981, which she had never seen before.

6 PEDERSEN AND BAADSGAARD v. DENMARK JUDGMENT

Taxi driver: It’s missing, the bit about – there was only... about the Peugeot, there was nothing about the rest, unless you have another one.

Second applicant: There is only this one.

Taxi driver: But it obviously cannot have been important.

Second applicant: What do you think about that?

Taxi driver: Well it says, I don’t know, well I think when you make a statement, it should be written down in any case, otherwise I can’t see any point in it, and especially not in a murder case.

Commentator: So the taxi driver claims that already in 1981 she had told two police officers that she had seen X and his son. Not a word of this is mentioned in this report.

Second applicant: Why are you so sure that you told the police this, which at that time was 1981.

Taxi driver: Well I am 100% sure of it and also, my husband sat beside me in the living room as a witness so..., so that is why I am 100% certain that I told them.

Second applicant: And he was there throughout the entire interview?

–  –  –

Commentator: It was not until 1990, nine years later, that the taxi driver heard of the matter again, shortly after the “Convicted of Murder” programme had been shown; even though the taxi driver’s report had been filed as a so called 0-report, she was phoned by a Chief Inspector of the Flying Squad (Rejseholdet) who had been asked by the Public Prosecutor to do a couple of further interviews.

Taxi driver: The Chief Inspector of the Flying Squad called me and asked whether I knew if any of my colleagues knew anything they had not reported, or whether I had happened to think of something, and I then told him on the phone what I said the first time about the Peugeot and that I had driven behind X and his son up to Ryets Street, and then he said that if he found out about anything which, otherwise...

or if there was anything, then he would... then he would get in touch with me again, which he didn’t do, not until a while afterwards when he called me and asked whether I would come for another interview.

Second applicant: When you told the Chief Inspector of the Flying Squad in your telephone call that you followed X, and his son was in the car, what did he say about that?

–  –  –

Second applicant: He did not say that you had never reported this?

Taxi driver: No, he didn’t.”

19. The second applicant then conducted a short interview with X’s new

counsel:

“Second applicant: Have you any comment on the explanation the taxi driver has given now?

X’s new counsel: I have no comment to make at this time.

Second applicant: Why not?

X’s new counsel: I have agreed with the public prosecutor, and the President of the Special Court of Revision, that statements to the press in this matter will in future only be issued by the Special Court of Revision.



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