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FIRST
SECTION
CASE OF A. v. NORWAY
(Application
no. 28070/06)
JUDGMENT
STRASBOURG
9 April
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of A. v. Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 19 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28070/06) against the Kingdom
of Norway lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Norwegian national, Mr A. (“the
applicant”), on 19 June 2006. The President of the Chamber
acceded to the applicant's request not to have his name disclosed
(Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr P. Danielsen, a lawyer practising in
Oslo. The Norwegian Government (“the Government”) were
represented by their Agent, Mrs F. Platou Amble, Attorney General's
Office (Civil Matters).
- The
applicant alleged, in particular, that the unfavourable outcome of
his defamation suit against a newspaper before the Norwegian courts
constituted a failure to protect his right to the presumption of
innocence under Article 6 § 2 of the Convention and his right to
protection of reputation under Article 8.
- On
5 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Kristiansand.
A. Factual background to the defamation proceedings
brought by the applicant
- On
19 May 2000, two girls of eight and ten years of age were raped and
stabbed to death in Baneheia, a recreation area in the city of
Kristiansand. Two young men were later convicted of the crimes and
sentenced to 21 and 19 years of imprisonment respectively for rape
and murder committed in particularly aggravating circumstances. The
case received intense and extensive coverage in the national media.
- In
1988 the applicant had been convicted of murder, attempted murder and
eight instances of assault, all committed by the use of knife in June
1987 in Kristiansand. He had been sentenced to 11 years' imprisonment
and to five years' security measures (sikring) (which under
the relevant law at the time, could be imposed where it was
established that the person concerned was not mentally ill (and thus
criminally liable) but had an underdeveloped and permanently impaired
mental capacity and that, because of this condition, there was a
clear risk of his or her committing further criminal offences).
Shortly before the expiry of the security measures on 20 September
1999, the public prosecutor had requested a prolongation, which a
first instance court had granted in March 2000 for a period of three
years (but which an appellate court refused in January 2001). In May
1999 the applicant had been released from security detention (lukket
sikring) and had been placed under supervision at liberty (fri
sikring). Thereafter he had lived in Kristiansand, partly in a
camping cabin and partly in his family's cabin by the river and had
been working at a protected workplace for persons on rehabilitation
scheme. He was a substance abuser and was connected to a group which
used to gather at the so-called “Acid Knoll”, a place in
the recreation area where the murders had taken place.
- During
the early stages of the murder investigation, the applicant and a
number of other previously convicted persons were interrogated as
witnesses. The police's interest in the applicant attracted
considerable media attention.
- Two
days after the murder, the police collected the applicant from his
workplace and brought him to the police station. The police
interrogated him for 10 hours until 00.30 am on 24 May 2000, and then
brought him to his home. The interrogation became known to the press
and was presented in the national media on 23 and 24 May 2000
together with information about his criminal trial in 1988 and the
imposition of security measures in his case. In their issues
published on those dates, three national newspapers, Aftenposten,
Dagbladet and Verdens Gang, reported on the applicant
but without stating his identity.
- Also
a national television channel, the TV2, gave extensive
reports. In a news broadcast on 23 May 2000, at 9 pm (while
the applicant was being interrogated), it stated:
“Possibly the most special candidate of these
persons (former convicted, Court's addition) is precisely this
42-year-old because of his past and because he has been seen in the
area where the murder occurred, at the time when it occurred, but so
far there are no suspects, and it is precisely that which now is a
little exciting in this case. Habitually, this type of investigation
takes a long time, but when one carries out this type of alibi
checkups, the case may soon take a new and special turn.”
- In
a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that
members of the press had followed a 42 year old murderer from
Kristiansand in his footsteps. Then ensued an interview with the
applicant, during which he was filmed from behind and partly from the
side, on his way to the so-called “Acid Knoll” in the
Baneheia area.
- On
25 May 2000 Dagbladet published information about the
applicant's place of residence, in a report which also contained an
interview with him.
B. Publication giving rise to the defamation
proceedings brought by the applicant against Fædrelandsvennen
- On
24 May 2000, the newspaper Fædrelandsvennen, which is
mainly a subscription newspaper (45,000 subscribers) and the
principal district newspaper on the southern coast of Norway,
published a report on the Baneheia case. The front page
carried the following headline and introduction:
“Convicted
Murderer: I am completely innocent
AT WORK: At 7.10 this morning, a 42-year-old convicted
murderer from Kristiansand toddled off to the bus to return to work.
Last night, he had been driven home by the police, after having been
interrogated for approximately 10 hours concerning his movements on
Friday, the day when C and D were killed.
ALIBI: - I am completely innocent, said the 42-year-old
to Fædrelandsvennen in the early hours of today. The man
says he has an alibi for Friday night. The 42-year-old, who was seen
by several witnesses in Baneheia on Friday, is probably the most
interesting of several criminally convicted persons whose movements
are now being checked by the police.
SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old
was sentenced to 11 years imprisonment and five years security
measures [sikring] for one murder by knife, one attempted
murder and several other acts of violence, with knife. The term of
security measures [sikringstid] imposed on him expired on 20
September last year, but as late as in March this year, he was
sentenced to another three years of security measures. The judgment
has been appealed against.”
Inside
the newspaper at page 4 appeared an article entitled
“Murder convict
returns to work today”
With
the subtitle:
“I am completely innocent”
- The
article contained a brief interview with the applicant, in which he
stated that he had nothing to do with the matter and that he had
witnesses. Next to the article appeared a large photograph showing
the applicant from the side while entering a bus, not showing his
head and the upper part of his bust inside the bus. A caption stated
that the 42 year old was on his way to work at 7 am and: “'I am
completely innocent`”, says the previously murder convicted man
who yesterday was interrogated for 10 hours.”
- Underneath
on the same page, the paper reproduced another article entitled:
“Sent home
after 10 hours' interrogation”
The
introduction stated:
“At 2 pm yesterday a 42 year old murder convict
was fetched by the police at his workplace. 11 hours later he was
brought to his home”
- The
article was accompanied by a large photograph of “the
42-year-old”, with his head blurred, accompanied by two police
officers.
- The
article stated that the police had collected him at his workplace in
the afternoon of 23 May 2000 for a 10 hour long interrogation. It
described inter alia the background for the police's interest
in the applicant, reiterating that he had purportedly been seen by
several witnesses in Baneheia on Friday night when the two girls had
disappeared. Furthermore, reference was made to the factual
background of his conviction in 1988. The following sub-titles were
used: “Seen by the police”, “Released for one
year”, “Berserk with a knife”, and “Victims
at random”.
- The
article further quoted statements by a Chief Constable,
Mr A. Pedersen, underlining that there “were still no
suspects in the case” and that all of the people summoned for
questioning had “formal status as witnesses in the case.”
This point was further elaborated on in an interview with the Chief
Constable on the same page, entitled “No one imprisoned today.”
- In
yet another article appearing under the heading “Have got the
murderer in the papers”, the Chief Constable was quoted to have
said to Verdens Gang that “the police have received so
much information of substance that they have the answer in their
documents to the question who had murdered the two young girls.”
- The
Baneheia case was also the main item on the front page of
Fædrelandsvennen on 25 May 2000, with the heading “DNA
traces found at murder place”. The article reiterated that
according to the preliminary autopsy report, both of the girls had
been sexually abused, that they had been murdered with a pointed and
sharp penetrating arm, most probably with a knife. Page 6 of the
paper contained an interview with some neighbours of the 42 year old,
entitled “Neighbours fear prejudgment”, published
together with a photograph of a residential development site. The
article named a specific residential development area, Q, and
its precise location, Z, stating that it was the “nearest
neighbour to the 42-year-old convicted of murder.”
- In
a further article on the same page, under the heading “They
want to know where I am”, the paper mentioned the name of the
street where the applicant lived (Y), that of his neighbourhood (Z),
and that of the company where he worked. The article rendered a
statement by the applicant maintaining his innocence and informing
that the police had wanted to know his whereabouts but had let him in
peace. Next to the article appeared a photograph of the applicant
seen from behind, at a relatively long distance, on his way down
towards the Z-river, with the caption: “The 42 year old murder
convict on his way home yesterday”.
- On
the same page appeared an article headed “Searching for a
locally known murderer”, which quoted Chief Constable Pedersen
as stating inter alia that the main emphasis of their
investigation had been based on the belief that the murderer(s) had
been locally known but that a wider Nordic focus had also been
discussed. He had added that it was dangerous to concentrate the
investigation on a specific milieu.
- At
the material time, Fædrelandsvennen was published in the
afternoon, whereas Dagbladet, Verdens Gang and
Aftenposten were published in the morning.
C. Defamation proceedings brought by the applicant
against Fædrelandsvennen
- In
October 2000, after the arrest of the actual perpetrators in the
Baneheia case, the applicant, represented by a lawyer,
demanded that Fædrelandsvennen apologise for its
coverage and compensate him for pecuniary and non-pecuniary damage he
had sustained. As the newspaper refused, in December 2000 the
applicant's lawyer brought on his behalf defamation proceedings
before the Kristiansand City Court (tingrett) against
Fædrelandsvennen, its editor-in-chief, Mr F.
Holmer-Hoven and journalist B. The applicant claimed compensation for
pecuniary and non-pecuniary damage.
- By
a judgment of 16 April 2003 the City Court rejected the applicant's
action.
- The
applicant then appealed to Agder High Court (lagmannsrett). He
waived his claim for pecuniary damage, which matter was formally
discontinued (hevet), but maintained his claim for
non-pecuniary damage.
- By
a judgment of 23 December 2004, the High Court, sitting with three
judges, found that an ordinary reader could perceive the impugned
press reports published by the Fædrelandsvennen on 24
and 25 May 2005 as pointing to the applicant as a possible
perpetrator of the murders of the two girls in Baneheia. The High
Court observed that, although the paper had not mentioned the
applicant by name, it ought to have been possible for those who knew
him in advance to recognise him, in particular from the photograph
taken of him from behind and from the information about his
residence- and work places contained in the 25 May 2000 issue. It was
hard to derive anything specific about the strength of the suspicion.
Although it was true that formally speaking the applicant had only
been given witness status, seen as a whole the report was capable of
giving the ordinary reader the impression that the paper regarded the
applicant as a person who already at an early stage of the
investigation had stood out as the most probable perpetrator among
those who had been in the police's search light. The High Court
moreover noted a number of other aspects of the publications
confirming this impression. It concluded that the impugned
publications were defamatory in the sense of Article 247 of the Penal
Code.
- As
to the question whether the publications were unlawful (rettstridig),
the High Court was of the view that it generally should fall within
the State's margin of appreciation to strike a fair balance between
the interests in protection of freedom of speech under Article 10 of
the Convention and the interests in protection of reputation under
Article 8, bearing in mind also the presumption of innocence under
Article 6 § 2. On the particular facts of this case, the High
Court considered that there was undoubtedly a great public interest
in the investigation of the murders and in the pursuit of the
culpable persons. However, with two votes to one, the High Court
found that, on balance, the interests in allowing the publications
weighed more heavily than those against and that the impugned news
coverage had therefore not been unlawful.
- The
dissenting member found that the “identification” of the
applicant and its extensive press coverage by Fædrelandsvennen
had been unlawful and that he should be awarded compensation under
section 3-6 of the Damage Compensation Act 1969, namely NOK 150,000
by the newspaper and NOK 25,000 each from the editor-in-chief
and from the journalist.
The
applicant appealed against the High Court's application of the law to
the Supreme Court, alleging that it entailed a violation of Articles
6 § 2 and 8 of the Convention. He maintained that in its
coverage on 24 and 25 May 2000 the Fædrelandsvennen
had portrayed him as the perpetrator of the most aggravated offences
seen in modern times in Norway. He had not consented to the media
coverage which had been a great burden to him. He had lost his job
and home and suffered from serious psychological problems.
- By
a judgment of 14 December 2004 the Supreme Court, by three votes to
two, found in favour of the respondents and rejected the applicant's
claim.
- Mr
Justice Stang Lund, whose reasoning was endorsed in the main by the
other judges in the majority, inter alia concurred with the High
Court's finding that, the Fædrelandsvennen's focus on
the applicant as a previously convicted knife killer, his presence in
Baneheia on the day when the criminal acts had been committed and the
investigation of the applicant, for an ordinary reader must have been
perceived as if he could be suspected of having committed the
murders. It had already been publicly known that the perpetrators of
the murders had used pointed penetrating weapons against the girls.
This information together with the rendering of parts of the judgment
by which the applicant had been convicted in 1988 and the security
measures case, were likely to harm his good name and reputation and
to expose him to hatred and contempt, thus fulfilling the objective
constitutive elements in Article 247 of the Penal Code. On these
points Mr Justice Stang Lund stated:
“(56) Taking as a starting point the wording,
typography, the internal context and the use of photographs it must
be ascertained how the report and articles were likely to be
understood by the ordinary reader.... The statements must be
considered in the context of the whole report they are part of.
(57) The High Court unanimously found that the factual
information had to be considered in the context of the other content
of the reports and the articles published on 24 and 25 May 2000, and
concluded:
'In the High Court's opinion the conclusion of the
interpretation is that Fædrelandsvennen pointed to [the
applicant] as a possible perpetrator of the murders of the two girls
in Baneheia. His name is not stated, but it was possible for those
who previously knew [the applicant] to recognize him in particular
because of the photograph taken of him from behind and because of the
information about where he lives and the work place in the report
dated 25 May. It is difficult to evaluate how strong the suspicion
created was. Even though it is correctly underlined that the police
had given [the applicant] only a witness status without formally
charging or suspecting him, in the High Court's view the report as a
whole was capable of giving the ordinary viewer the impression that
the newspaper considered [the applicant] to be a man who already at
this early stage in the investigation stood out as the most likely
perpetrator among the persons who were in the police's search light.'
(58) The High Court, amongst other aspects, emphasised
that in the front page story of 24 May it was stated that [the
applicant] was 'probably the most interesting of several convicted
persons whose movements are now being checked by the police', that he
had been questioned for 10 hours after having been collected by the
police at his work place, and that the report was illustrated with
Dagbladet's photograph of [the applicant] with his head
blanked, being escorted by two police officers. The High Court found
that the photograph created associations of arrest. This was
presented together with the information that, after having been
brought home, another police car with a dog patrol had arrived at the
house, had passed by in low speed, had turned and had vanished in the
dark. In addition to this the newspaper rendered statements by a
police inspector to Verdens Gang that the police had received
much information with substance, and that the answer to who had
killed the two little girls was to be found in the police records.
Also the rendering on 25 May that the police were looking for a
locally known murderer with a greatly deviant personal character, in
the High Court's opinion supports the view that the applicant may be
a person with the special character that are a requisite for
committing such a heinous crime. The High Court did not find that the
rendering of [the applicant]'s denial and of the neighbours' warning
against prejudging were sufficient to weaken the suspicion created by
the newspaper coverage as a whole.
(59) I concur with the High Court in that the focus by
Fædrelandsvennen on [the applicant] as a previously
convicted knife killer, his presence in Baneheia that afternoon the
misdeed was carried out, and the investigation of him, for an
ordinary reader must have been perceived as if he could be suspected
of having committed these killings. It was already publicly known
that the perpetrator(s) had used knives when the girls were killed.
This information, together with the description of parts of his
criminal conviction from 1988 and the security measures [sikring],
was likely to harm [the applicant]'s good name and reputation and to
expose him to hatred and contempt. The objective description of the
offence in Article 247 is therefore fulfilled.
(60) The adversary party has stated that the reports in
Fædrelandsvennen of 24 and 25 May did not contribute to
identify [the applicant] beyond that occurred in TV2 in the
evening of 24 May, where he was interviewed and filmed from behind
and from the side while walking towards Baneheia. My comment to this
is that Fædrelandsvennen in connection with the reports
of 25 May 2000 about [the applicant] informed about 'the 42 year
old's' work place and place of residence. The photograph from the
previous day depicting [the applicant] entering a bus, a new
photograph of 25 May showing [the applicant] with the same jacket and
with a plastic bag on his way home 'to the house in ....[the
applicant]'s road at Z', and the article from the newly constructed
housing area in Æ at Z, may have led to more people in the near
environment becaming aware of [the applicant]'s identity.”
- As
to the further question whether the allegations were unlawful
(rettstridige), Mr Justice Stang Lund observed inter alia
the following with regard to the concrete circumstances of the case:
“(76) It is self-evident that the rapes and
killings in Baneheia on Friday, 19 May 2000 were of great public
interest. The news media had a duty to report, and the public had a
right to receive, information about the misdeed, the investigation
and the progress in the case. It is clearly a matter of public
interest that previously convicted felons are in the police's
searchlight, and that interrogations and other police work is taking
place to check witnesses out of the case or to charge them. In the
near environment it may be of public interest to be informed about
the fact that a previously convicted killer in the area in respect of
whom a case concerning prolongation of security measures was pending,
has been brought in by the police for questioning.
(77) This must however be weighed against the interest
of privacy and the protection of reputation, when the media circles
in and identifies one or a few previously convicted persons being
under investigation. At this stage the public normally has no
legitimate interest to receive detailed information about previously
convicted persons and their identity, hereunder descriptions of the
criminal offences for which they have been convicted. However, in
this very special case people living in the vicinity had a particular
interest in knowing that a person who had previously been found
guilty of murder and of violent assault and who had been sentenced to
security detention, was living in the area, so that they could
protect their own and their children's interests.
(78) The character of the allegation and, in particular,
its seriousness is an important factor in the balancing exercise to
be carried out when determining whether the interests of protection
of personal life justify an interference with the freedom of
expression, see Norwegian case-law reports (Norsk Retstidende
(Rt.)) 2002 p. 764 on pp 774-775. In accordance with the
case-law of the European Court and the Norwegian Supreme Court a
distinction ought to be made between statements of fact and value
judgments, because only statements of fact may be susceptible to
proof. Normally statements which may be understood to mean that a
person is or may be suspected of a criminal offence must be
considered to be statements of facts which need to be proven.
(79) The respondents have argued that the impugned
statement only concerns whether the unnamed 42 year-old 'is probably
the most interesting among several previously convicted felons whose
movements are now being checked by the police'. The leader of the
investigation has later confirmed that the applicant was the most
interesting person on whom efforts were deployed at the beginning of
the investigation. The statement is alleged to have been correct, and
its publication is claimed not to be unlawful.
(80) When one, as I do, has reached the conclusion that
the newspaper's reports and articles considered as a whole left the
impression that [the applicant] could be a suspect in the case, the
evidence must concern whether he has committed the crime he has been
accused of. It is not sufficient that the newspaper gave an accurate
description of the factual circumstances adduced to show that there
was a basis for suspicion. As an exception to this general rule case
law has accepted the publication of charges. Here the evidence is
acceptable when it is proven that the reporting of the charge in
itself is correct, see Rt. 1999 p. 1742 (Landåssaken).
There is no corresponding exception for reporting on suspicion.
(81) In this case Fædrelandsvennen has not
rendered a suspicion stated by others. The newspaper coverage and the
articles mainly consist of reporting on the judgment from 1988, the
relevant preventive supervision case [sikringssak] and the
statements made by leaders of the investigation. It appears clearly
that the applicant has been interrogated as a witness and that
neither he nor anyone else is under investigation as a suspect. The
most direct statement indicating suspicion is attenuated in its form
in that [the applicant] according to the newspaper is 'probably the
most interesting of several criminally convicted persons whose
movements are now being checked by the police'. His statements in an
interview published on 24 May 2000 about his being completely
innocent, has been published in the head line on top of the front
page.
(82) In balancing the competing interests in the
concrete case I have with some doubt found that it was not unlawful
for Fædrelandsvennen on 24 and 25 May 2000 to publish
that [the applicant] was the most interesting of several convicted
persons investigated by the police, even though this in the context
may be perceived to mean that he was or could be a suspect. The
monstrous sexual offences and consequent killings in Baneheia were of
particularly great public interest throughout the country, especially
in Kristiansand and in the Agder counties. The people in the vicinity
around Baneheia and in the vicinity where [the applicant] lived, had
a particular interest in receiving continuous and concrete
information about the investigation.
(83) In my opinion the journalist and the editor have
not been negligent. The intense and extensive interest shown by the
national news media directed against [the applicant] before
Fædrelandsvennen's own publishing, his own statements to
the media and the public interest justified the publication of the
information about [his] workplace and place of residence and the use
of anonymous photos of his person. When considering the question of
negligence, I also emphasize that the coverage and articles were
balanced, that their main content consisted of reporting true factual
information, and that the police underlined that no one was under
suspicion and that the [applicant]'s view was presented clearly. I
add that since this case presented itself at the early stage of the
investigation, the newspaper had no cause to investigate further if
[the applicant] could be the perpetrator....”
- Mrs
Justice Coward, whose opinion was endorsed in the main by the other
judge of the minority, stated, amongst other:
“(93) There was obviously public interest attached
to the investigation in the Baneheia case. The nation was
shocked, and it was a task for the media to inform of the crimes and
the work of the police. In the High Court it was agreed that it must
be allowed to impart an information that a previously convicted felon
was in the police's search light and had been subjected to a long
interrogation - even though the reporting would make it possible to
understand who this was for those who had special knowledge or for
those who carried out investigations on their own. I too agree with
that. The disagreement in the High Court concerned whether the
further identification provided by Fædrelandsvennen - in
particular by revealing the workplace and residence was justified.
(94) In assessing the character of the allegation it is
a point that this constituted an affirmation of suspicion, which when
considering the seriousness is different from an accusation of being
the perpetrator. But, on the other hand, the suspicion was related to
particularly heinous crimes. The crimes aroused strong feelings of
abhorrence and hatred in the population, and it is difficult not to
think that it must have been awful to have been exposed to suspicion
for having committed them. I agree with the High Court minority when
it states that 'strong reasons for protecting the privacy militate
for protecting the identity of an individual who for different
reasons has come in the search light of the police in the
investigation of criminal cases. This consideration is, not the
least, important in serious criminal cases where great public
interests are attached to clearing up the case'. And precisely a
person like [the applicant], who with his background more easily than
others would be suspected, had a special need for the protection
offered by the presumption of innocence.
(95) I cannot see that it betters things, as stated by
Fædrelandsvennen, that [the applicant] was given the
opportunity to declare his innocence on the front page of the
newspaper's issue of 24 May 2000: 'Convicted murderer: I am
completely innocent'. It emerges from this report that none of 'a not
insignificant number of people' being checked in the case were under
suspicion. However, neither this was likely to weaken the suspicion
towards [the applicant] as the likely perpetrator. I agree with the
High Court - all three justices - when it states:
'Not in the least the High Court finds that the total
search light directed against [the applicant] is important. He
represents both the starting point and most of the reporting done by
Fædrelandsvennen covering the Baneheia-case those
days. Given the reluctance the press in accordance with the ethics of
journalism usually show by not identifying individuals being in the
police's search light, this to a large extent must strengthen the
ordinary reader's impression of [the applicant] as being the most
possible perpetrator.'
(96) I cannot see that the total reporting by
Fædrelandsvennen should be considered balanced, even
though the factual information taken apart had not been incorrect,
[the applicant] had been given the opportunity to claiming his
innocence and the police's statement that no one was to be suspected
had been referred to. When it comes to heinous crimes of such gravity
as here, in my opinion the press should not be allowed to publish
untrue suspicions against identifiable individuals, even though the
coverage should otherwise be characterized as being balanced.
(97) I add that [the applicant] was persecuted by
assertive media people against whom he found it difficult to protect
himself. That he at no point accepted to be identified, must be
obvious.
(98) The difference of opinion between the majority and
the minority of the High Court was related to the significance of
other media identifying [the applicant]. In the evening of 24 May
2000 TV2 showed a report where he was filmed from behind and
somewhat from the side. On 25 May 2000 Dagbladet informed that
he worked in a protected workplace in Kristiansand and lived in his
brother's cabin in Y at Z. The newspaper also showed a photo of him
taken from behind. Fædrelandsvennen went the furthest in
publishing identifying information about [the applicant] - in
particular by revealing his workplace and residence, but besides this
the articles in this most important district newspaper must have made
it possible for more people to identify him than those who watch TV2
or read Dagbladet.
(99) The High Court minority point to an important
consideration in emphasising at the end stating the need for the
individual to be protected from collective media pressure:
'The minority also attaches considerable weight to the
fact that the coverage in Faedrelandsvennen appeared as an
extensive and independent contribution from the newspaper and that
the damaging effect for [the applicant] and the problems caused for
him must have been caused by the total pressure from the media
coverage during a short and concentrated period of time where
Fædrelandsvennen's contribution was of particular
significance. The minority is inclined to accept that [the applicant]
had become 'free game' as a result of the fact that some media had
identified him. Such a solution is not adequate for protecting each
individual against libellous reporting in mass media and does not
coincide with the independent responsibility each newspaper has in
circumstances where judicial and ethical press norms may be under
challenge due to a situation of competitiveness .'
(100) I concur with this, and conclude - in accordance
with the vocabulary used by European Court - that a pressing need
existed for interfering with the freedom of expression in the way of
a reaction to the coverage by Fædrelandsvennen.
(101) The conditions for compensation in accordance with
section 3-6 of the Damage Compensation Act have been fulfilled. Since
I am aware that I represent a minority, I see no reason to go into
detail with regard to the amount of compensation. However, in view of
Fædrelandsvennen's pleadings I point to the fact the
harm caused by the offence to a large extent must be objectified:
Also people who are socially marginalised must enjoy effective
protection against libellous allegations. Like the minority in the
High Court, I vote for compensating [the applicant] with NOK 150,000
from the newspaper and NOK 25,000 from the editor. The contribution
from the journalist was more peripheral, and she should not be
ordered to pay compensation. ...”
D. Defamation proceedings brought by the applicant
against TV2
- In
October 2003 the applicant brought defamation proceedings against TV2
AS (Ltd.) before the Kristiansand City Court claiming
compensation with regard to TV2's news coverage on 23 and 24
May 2000 of the Baneheia case. The City Court found for TV2
and rejected the applicant's claims. On an appeal by the applicant,
on 8 December 2006 the Agder High Court upheld the applicant's claim
that the news coverage constituted unlawful defamation and ordered
the defendants to pay him NOK 250,000 in compensation for
non-pecuniary damage and discontinued the case with regard to his
claim for pecuniary damage. As regards the contents of the disputed
broadcasts and their defamatory effect, the Agder High Court made
similar findings in the TV2 case as made by the appellate
courts in the present case. In finding the defamation unlawful it had
regard to several factors, notably TV2's national as opposed
to local media role, unlike that of Fædrelandsvennen,
the potency of the televised medium, the rule of caution applicable
to the press with regard to identification of person regarding
coverage of early stages of criminal investigations and the fact
that, although aware of an autopsy report made available on 24 May
2000 revealing that the murders had involved rape, TV2 had in
the evening news of that date continued to focus on the applicant
notwithstanding the fact that his 1988 criminal conviction had not
concerned sexual offences. TV2 had also been the first medium
to insinuate suspicion against the applicant and to identify him in
its broadcasts and had taken the lead in this regard. On 19 February
2007 the Appeals Leave Committee of the Supreme Court refused TV2
leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Conditions
for holding a defendant liable for defamation are set out in Chapter
23 of the Penal Code, Article 247 of which provides:
“Any person who, by word or deed, behaves in a
manner that is likely to harm another person's good name and
reputation or to expose him to hatred, contempt, or loss of the
confidence necessary for his position or business, or who is
accessory thereto, shall be liable to fines or imprisonment for a
term not exceeding one year. If the defamation is committed in print
or in broadcasting or otherwise under especially aggravating
circumstances, imprisonment for a term not exceeding two years
may be imposed.”
A
limitation to the applicability of Article 247 follows from the
requirement that the expression must be “unlawful”
(“rettsstridig”). While this is expressly stated
in Article 246, Article 247 has been interpreted by the Supreme Court
to include such a requirement.
- For further specific information on the relevant
national law, reference is made to paragraphs 41 to 45 and 47 of
Tønsbergs Blad A.S. and Haukom v. Norway, no.
510/04, ECHR 2007 ...
III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE
COUNCIL OF EUROPE
- The Appendix to the Recommendation Rec(2003)13 of the
Committee of Ministers to member states on the provision of
information through the media in relation to criminal proceedings
(Adopted by the Committee of Ministers on 10 July 2003 at the 848th
meeting of the Ministers' Deputies) contains the following principle
of particular interest to the present case:
“Principle 8 - Protection of privacy in the
context of on-going criminal proceedings
The provision of information about suspects, accused or
convicted persons or other parties to criminal proceedings should
respect their right to protection of privacy in accordance with
Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and
convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their
identification may have on the persons referred to in this
Principle.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the unfavourable outcome before the
Norwegian courts of his defamation suit against Fædrelandsvennen
constituted a failure by the national authorities to protect his
right to the presumption of innocence under Article 6 of the
Convention, which as far as relevant reads:
“2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”
A. The parties' submissions
(1) The applicant
- The
applicant emphasised that, despite the utmost importance of not
prejudging him, as even pointed out by some of the neighbours in the
disputed press coverage, the newspaper had exposed him as the most
likely perpetrator of the crime and had thereby subjected him to
prejudgment that was particularly damaging to his reputation.
- He
argued that in criminal cases it was for the police, not for the
press, to identify possible perpetrators. Only when a person had been
formally charged was it permissible for the press to divulge
information about suspicion, provided that the information about the
charge had been presented correctly.
- The
police had had the situation well under control. They had interviewed
the applicant as a matter of routine and had considered him only as a
witness. Had the police found a need to warn people in the
neighbourhood, they would have done so. In any event, the newspaper
was aware of the police's presence in the area.
- The
applicant stressed that publishing suspicion of serious crime might
influence a trial court negatively and cause prejudice to judicial
independence and the course of justice. As correctly pointed out by
the minority of the Supreme Court, it should not be permissible for
the press to publicise unfounded suspicion of aggravated crime, like
here, against identifiable individuals.
(2) The Government
- The
Government disputed the applicant's complaint under Article 6 §
2 of the Convention. They submitted that the outcome of the
defamation proceedings before the Norwegian courts did not attract
the application of Article 6 § 2 of its own and invited the
Court to declare the complaint inadmissible as being manifestly
ill-founded under Article 35 §§ 3 and 4 of the Convention.
- In
this regard, the Government argued that the right to the presumption
of innocence embodied in Article 6 § 2 was a vertical provision
protecting a person charged with a criminal offence vis-à-vis
the national authorities. Between private parties, an accusation of
criminal guilt could raise a legal issue of defamation but not a
legal issue under Article 6 § 2. As the Court had stated in
Allenet de Ribemont v. France (10 February 1995, § 36,
Series A no. 308), the presumption of innocence guarantee was
reserved for accusation of criminal guilt stemming from “public
authorities”. The Government found no basis for the existence
of a positive obligation under Article 6 § 2 engaging the
responsibility of public authorities for the newspaper's activities.
- Moreover,
as was clear from the newspaper articles, the police did not at the
time consider the applicant to be a suspect, but merely a witness.
The police had not yet taken any such steps against him during the
investigation phase or otherwise made any such indications of
incriminating evidence against him as would suffice to consider the
applicant as “charged” with a criminal offence within the
meaning of Article 6 § 2 (see, inter alia, Serves v. France,
20 October 1997, § 42, Reports of Judgments and Decisions
1997 VI).
B. The Court's assessment
- The Court observes that no public authority had
“charged [the applicant] with a criminal offence”, in the
Banehia case, within the meaning of Article 6 § 2 of the
Convention (cf. Allenet de Ribemont, cited above, §§ 34-37;
Kyriakides v. Cyprus, no. 39058/05, § 35, 16 October
2008). While the information concerning the applicant in relation to
the investigation in the Baneheia case had in part been provided by
the police, it was the coverage by Fædrelandsvennen on
24 and 25 May 2000, not the statements by the police, which was at
the heart of the matter before the national courts. In any event, the
disputed newspaper publications did not amount to an affirmation that
he was guilty of the crimes in question. In the Court's view, Article
6 § 2 was inapplicable to the matters complained of.
Accordingly, this part of the application must be declared
inadmissible as being incompatible ratione materiae under
Article 35 §§ 3 and 4 with the provisions of the
Convention.
- However,
the conclusion above does not prevent the Court from taking into
account the interests sought to be protected by Article 6 § 2 in
the balancing exercise carried out below (see Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 65).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- With
reference to the same facts as his complaint under Article 6 § 2
of the Convention, the applicant complained of a violation of his
right to protection of reputation under Article 8 of the Convention.
This article reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government disputed the applicant's complaint and requested the Court
to declare it inadmissible as being manifestly ill-founded under
Article 35 §§ 3 and 4 of the Convention.
A. Admissibility
- The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further considers that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicant
- The
applicant stressed that, according to established case-law, the
safeguard afforded by Article 10 to journalists was subject to the
proviso that they were acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism (see Cumpǎnǎ and Mazǎre v. Romania [GC],
no. 33348/96, § 102, ECHR 2004 XI). Special grounds were
required in order to free the media from their general obligation in
this respect. Whilst no such grounds existed in the present instance,
the newspaper had offered no evidence suggesting that the applicant
was guilty and had made no efforts to investigate the matter of its
own. The newspaper had erred grossly: A was innocent. Thus the
majority of the Supreme Court had failed to apply the correct test.
- Moreover,
the Supreme Court majority had deemed it acceptable that the
newspaper invade the applicant's privacy by publicising information
about such details as the name of his work place, by publishing a
photograph of him, taken from the side, while entering a bus on his
way to work and another photo, taken from behind, depicting him
walking home at a location close to his home.
- For
the applicant, the consequences of the newspaper report had been
enormous. He could not continue in his job and had to move and live
in a tent elsewhere, isolated and scared away from society. Whilst
there obviously was a pressing social need to protect the applicant's
interests the Supreme Court failed to provide such protection and had
failed to strike a proper balance between his right to protection of
reputation under Article 8 of the Convention and Fædrelandsvennen's
freedom of speech under Article 10.
- The
newspaper should obviously have handled the applicant more carefully
in its news reporting, considering that he in any event could most
probably not have been the perpetrator. The Supreme Court's majority
had wrongly applied the Article 10 safeguard in favour of the
newspaper in this case.
- The
Government's submission with reference to paragraphs 76, 81 and 83
(quoted at paragraph 32 above) of the Supreme Court's judgment that
the latter had relied on the public interest in the publication as a
“special grounds” was shallow. It in reality meant that a
person who was trampled down or who was most in need of protection by
the rule of presumption of innocence should enjoy no effective
protection. As pointed out above; when the police had no reason for
issuing a warning against the applicant and simply treated him as a
witness, it was certainly not for the press to play the role of
police.
- More
importantly, the Supreme Court should have considered that the
newspaper did not handle adequately the information in the autopsy
report which pointed away from the applicant. Whilst having referred
to “monstrous sexual offences” in paragraph 82 of its
judgment (quoted at paragraph 32 above), the Supreme Court had
failed to consider that the applicant had never been involved in such
crimes. The newspaper had clearly been negligent. The newspaper's
actions and the assessment made thereof by the Supreme Court thereof
could not be regarded as complying with journalistic ethical
standards laid down in the European Court's case-law.
- It
was incorrect as stated by the Supreme Court in paragraph 83 of its
judgment that the newspaper articles had been “balanced”.
While it was true that the 24 May 2000 issue had quoted the applicant
on top of the front page saying “I am completely innocent”,
by publishing this peculiar interview, covering almost the upper half
of the front page, the newspaper had actually made things worse. It
had contributed to arise more suspicion against the applicant, not
less. By describing him in the ensuing text on the front page as the
“most interesting” person interviewed by the police, the
newspaper in reality did not create a “balance” but
rather imbalance to the applicant's detriment. Also, on this point he
shared the view held by the Supreme Court minority (in paragraph 95
of the judgment quoted at paragraph 33 above) that the
so-called balancing had not improved matters, agreeing with the High
Court's findings that the coverage had made the suspicion against him
stronger, not weaker.
(b) The Government
- The
Government did not dispute that Article 8 was applicable in the
present case but maintained that it had not been violated. In their
view, the Supreme Court had struck a fair balance when protecting the
two values guaranteed by the Convention which could come into
conflict with each other in this type of cases, namely, on the one
hand, freedom of expression protected by Article 10 and, on the
other, the right to protection of reputation under Article 8. The
Government thus concurred with the Supreme Court's finding that the
articles in Fædrelandsvennen had not been unlawful for
the purposes of Articles 246 and 247 of the Criminal Code and that
the applicant's claim for non-pecuniary damages under section 3-6 of
the Damage Compensation Act had accordingly been unfounded.
- The
Government further pointed out that in its reasoning dealing with the
issue under the Convention, the Supreme Court had rejected the
applicant's argument that a shift had taken place in recent
Strasbourg case-law, suggesting that the Court had attached greater
importance to the protection of reputation in the assessment of
whether an interference with freedom of speech was necessary for the
purposes of Article 10 § 2 of the Convention. In the
Government's opinion, nothing to this effect was to be found in
recent jurisprudence. For example, in Pfeifer
v. Austria (no. 12556/03, §
37, ECHR 2007 ... ), the Court had emphasised that in
striking a fair balance between the competing interests, the national
authorities enjoyed a certain margin of appreciation.
- In
its application of the principles in the Court's case-law to the
concrete circumstances of the case, the Supreme Court held that the
impugned newspaper articles had concerned untrue, defamatory
statements of fact, as they had left the ordinary reader with the
impression that the applicant could be suspected of having committed
the murders. On the facts, the Supreme Court noted the great public
interest in the investigation of the rapes and murders of the two
young girls and that it was clearly a matter of public interest for
the readers of a local newspaper such as Fædrelandsvennen
that a previously convicted killer, who had been the subject of
security measures and who lived in the area, had been summoned by the
police for questioning. The Supreme Court, having regard to the
various factors stated in paragraphs 81 to 83 of its judgment, was
satisfied that the impugned coverage had been presented in good faith
with the requisite care and precautionary qualifications and was
protected by Article 10 of the Convention.
- Moreover,
the Government, drawing attention to the outcome of a parallel case
brought by the applicant against TV2 in respect of its
television coverage of the same matter, clearly illustrated that
possible suspects in criminal cases with heavy media coverage were
not “free game”, but that they - according to
circumstances - could attract the protection of Article 8 even in
cases of great public interest, where the general public may have a
legitimate need for information. The distinction made by the national
courts had been based on a thorough and careful review of the facts
of each case.
- In
the Government's view, the difference of opinion between the majority
and the minority of the Supreme Court in the present instance was one
that clearly fell within the national margin of appreciation.
2. Assessment by the Court
(a) General principles
- The
case raises essentially an issue of protection of honour and
reputation as part of the right to respect for private life under
Article 8 of the Convention. This provision, unlike Article 12 of the
1948 Universal Declaration of Human Rights and Article 17 of the 1966
International Covenant on Civil and Political Rights of the United
Nations, does not expressly provide for a right to protection against
attacks on a person's “honour and reputation”. However,
as the Court has stated on previous occasions, the concept of
“private life” is a broad term not susceptible to
exhaustive definition. It covers the physical and psychological or
moral integrity of a person (see X and Y v. the Netherlands,
judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen
v. Finland, judgment of 16 December 1997, Reports of
judgments and Decisions 1997-VIII, § 63) and can sometimes
embrace aspects of an individual's physical and social identity (see
Mikulić v. Croatia, no. 53176/99, § 53,
ECHR 2002-I; for a more detailed summary of the case-law, see Pretty
v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).
- In
more recent cases decided under Article 8 of the Convention, the
Court has recognised reputation (see White v. Sweden,
no. 42435/02, § 26, 19 September 2006; and Pfeifer
v. Austria, no. 12556/03, § 35, ECHR 2007 ...) and also
honour (see Sanchez Cardenas v. Norway, no. 12148/03, §
38, 4 October 2007) as part of the right to respect for private life.
In Pfeifer (cited above, § 35), the Court held that a
person's reputation, even if that person was criticised in the
context of a public debate, formed part of his or her personal
identity and psychological integrity and therefore also fell within
the scope of his or her “private life”. The same
considerations must also apply to personal honour. In order for
Article 8 to come into play, the attack on personal honour and
reputation must attain a certain level of gravity and in a manner
causing prejudice to personal enjoyment of the right to respect for
private life (see Sidabras and DZiautas v. Lithuania,
nos. 55480/00 and 59330/00, § 49, ECHR 2004 VIII).
- The
question is whether the State has achieved a fair balance between the
applicant's “right to respect for his private life” under
Article 8 and the newspaper's right to freedom of expression
guaranteed by Article 10 of the Convention (see Pfeifer,
cited above, § 44; see also Von Hannover v. Germany,
no. 59320/00, § 57, ECHR 2004 VI, with further references).
In examining this question, the Court will have regard to the State's
positive obligations under Article 8 of the Convention to protect the
privacy of persons targeted in ongoing criminal proceedings (see
Principle 8 in the Appendix to Recommendation Rec(2003)13 of the
Committee of Ministers to member States on the provision of
information trough media in relation to criminal proceedings, quoted
at paragraph 37 above). It will also have regard to the principles
established in its case-law concerning the freedom of the press to
impart information on a matter of public concern, including on
ongoing criminal proceedings, and the right of the public to receive
such information (see, amongst other authorities, Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71,
ECHR 2004 XI).
- Against
this background, bearing in mind the particular nature of the
conflicting interests and the importance of the interests at stake,
the Court considers that the competent authorities in the respondent
State should be accorded a wide margin of appreciation in assessing
the need to protect the applicant's private life under Article 8 as
opposed to that of safeguarding the newspaper's freedom of expression
under Article 10.
(b) Application of these principles
- From
the outset it is to be noted that the applicability of Article 8 to
the case was undisputed and the Court sees no reason to hold
otherwise. The issue is whether the respondent State had failed to
fulfil its positive obligation under this provision to protect the
applicant's honour and reputation as part of the right to respect for
private life.
- The
Court observes that the disputed articles published by
Fædrelandsvennen on 24 and 25 May 2000 were devoted to
providing information about the preliminary police investigation into
the murders, and in the latter article, also rape, of two young girls
aged eight and ten respectively. In the news coverage under
consideration, Fædrelandsvennen had stated that the
applicant was “probably the most interesting of several
convicted persons whose movements the police were now checking”.
For the respondent newspaper, journalist and editor neither this
statement nor any other elements in the news coverage contained an
affirmation of suspicion against the applicant. However, the Supreme
Court, agreeing with the High Court, found that the focusing on the
applicant as a previously convicted knife killer, his presence in
Baneheia when the criminal acts had been committed and the
investigation of the applicant, must for an ordinary reader have been
perceived as if he could be suspected of having committed the murders
in question.
- The
Court sees no reason to disagree with the national courts' finding
that, for an ordinary reader, this must have been perceived as if the
applicant could be a suspect in the case and their finding that the
coverage was defamatory of him. In this connection the Court has
taken note of the fact that inside the 24 May 2000 issue, a Chief
Constable had been quoted as saying that there had been no suspects
in the case and that all of the persons who had been summoned for
questioning had had formal status as witnesses. Also, both on the
front page and inside, it had rendered the applicant's claim of
innocence stated in an interview with the newspaper.
- Although
the applicant had not been mentioned by name, the photographs and
details of his places of work and residence had made it possible for
persons who already knew him to identify him as a possible suspect of
aggravated crimes of a particularly reprehensible and also sensitive
(cf. White, cited above) character. While the news report
consisted of imparting factual information about the investigation
that was largely true, the way it was presented wrongly conveyed the
impression that there was a factual basis justifying the view that
the applicant could be considered a possible suspect.
- It
is obvious that the crimes in question because of their particular
nature and gravity were a matter of utmost concern to the national
public generally and to the local public especially, as observed by
the national courts (see paragraphs 82 of the Supreme Court's
judgment quoted at paragraph 32 above). Not only did the press have
the task of imparting such information but the public also had a
right to receive it. However, the Court does not consider that the
serious public interest in the subject matter could constitute such a
special ground as to justify the defamatory allegation against the
applicant with the consequent harm done to him.
- The
disputed media coverage was conducted in a manner which directly
affected the applicant's enjoyment of his right to respect for
private live. As observed by the dissenting member of the Supreme
Court, the applicant was persecuted by journalists against whom he
found it difficult to protect himself. It appears that, in order to
obtain his photographs and comments, the journalists followed the
applicant in his footsteps inter alia on his way to his home and to
his work place. The publications at issue occurred while the
applicant, in a phase of rehabilitation and social reintegration
after having finished serving a prison sentence and security measures
for other and unrelated crimes committed in 1987, had a fixed abode
and pursued gainful employment. After the publications he found
himself unable to pursue his job and he had to leave his home and was
driven into social exclusion.
- There
can be little doubt that the disputed publication entailed a
particularly grievous prejudice to the applicant's honour and
reputation that was especially harmful to his moral and psychological
integrity and to his private life (see Principle 8 in the Appendix to
Recommendation Rec(2003)13 of the Committee of Ministers to member
States on the provision of information trough media on relation to
criminal proceedings quoted at paragraph 37 above).
- The
Court is mindful of the careful and thorough review carried out by
the national courts of the various factors that are relevant under
the Convention. However, there was not in the Court's view a
reasonable relationship of proportionality between the interests
relied on by the domestic courts in safeguarding Fædrelandsvennen'
freedom of expression and those of the applicant in having his
honour, reputation and privacy protected. The Court is therefore not
satisfied that the national courts struck a fair balance between the
newspaper's freedom of expression under Article 10 and the
applicant's right to respect for his private life under Article 8,
notwithstanding the wide margin of appreciation available to the
national authorities.
- Accordingly,
there has been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage, on account of the hardship he had suffered following the news
coverage by Fædrelandsvennen. It had delayed his
reintegration into society and he had still not fully recuperated. He
requested the Court to take into account that as a result of the
media stir he had lost his job and had started to live in a tent,
being scared away from society. Whilst he had not provided
documentary evidence for his monetary losses, he requested that such
losses have a bearing on the assessment of the size of the award for
non-pecuniary damage.
- The
Government were of the opinion that the amount claimed was excessive.
- The
Court, assisted by the size of the award proposed by the dissenting
members of the Supreme Court (see paragraph 101 of the dissenting
opinion, quoted at paragraph 33 above) and making an assessment on an
equitable basis, awards the applicant EUR 19,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed (a) NOK 388,471.61 (NOK 1,180,630.12 less
the NOK 792,158.51 granted in free legal aid by the national legal
aid authority) for the costs and expenses incurred before the
domestic courts. (b) Moreover, he claimed NOK 150,000
(approximately EUR 16,000) (inclusive of value added tax) for legal
costs incurred in the Strasbourg proceedings.
- As
to item (a), the Government were of the view that awarding any sums
beyond that granted in national legal aid was not warranted in the
circumstances. Item (b) appeared excessive in the absence of any
further specification.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 12,500 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 8 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
19,000 (nineteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR
12,500 (twelve thousand five hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
these sums are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
