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FOURTH
SECTION
CASE OF MARIAPORI v. FINLAND
(Application
no. 37751/07)
JUDGMENT
STRASBOURG
6
July 2010
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 Mariapori v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Mihai
Poalelungi, judges,
Anne E. Niemi, ad hoc
judge,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37751/07) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Ms Anna-Liisa Mariapori
(“the applicant”), on 30 August 2007.
- The
applicant was represented by Mr Veli Lahti, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that the length of her criminal
proceedings had been excessive and that her freedom of expression had
been violated.
- On
20 October 2008 the President of the Fourth Section decided to
communicate the complaints concerning the length of proceedings and
freedom of expression to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 §3).
- Ms
P. Hirvelä, the judge elected in respect of Finland, withdrew
from sitting in the case (Rule 28 of the Rules of Court). The
Government accordingly appointed Ms Anne E. Niemi to sit as an ad
hoc judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in Muurola.
- In
December 1997 the applicant, a tax expert, was the defendant's
witness in a case where the public prosecutor had brought charges for
tax fraud. The evidence in the case was based, inter alia, on
a tax inspection report drawn up by tax inspectors A. and B. The
applicant provided her own calculation of the defendant's taxable
income. The defendant was convicted of tax fraud and the judgment
became final in June 1999.
- The
difference between the applicant's estimation of the defendant's
taxable income and the estimation given by the tax inspectors was
about 2.5 million Finnish Marks (FIM; about 494,000 euros). When
asked by the defendant's counsel whether the difference could be
explained by the tax inspectors' negligence or professional
incompetence, the applicant answered, under oath:
“No, to my mind they have done it intentionally.”
When
the defendant's counsel asked whether it was by incompetence or
intentionally that the tax inspectors had found that the taxable
income was FIM 1,435,000 instead of FIM 49,815, she replied:
“Intentionally.”
The
public prosecutor asked:
“Do
you say under oath that the tax inspectors have intentionally made
mistakes in this matter?”
The
applicant replied:
“Yes, the figures cannot be explained otherwise.
The tax inspectors have not a single ground to arrive at these
figures.”
- The
court proceedings as well as the applicant's statements were reported
in several newspapers but the tax inspectors' names were not
mentioned in any of them. Moreover, the court proceedings were open
to the public and the applicant's witness statements were recorded
word for word in the minutes, to which anyone had access.
- In
1998 the applicant published a book about taxation in which the
above-mentioned court case was cited. It was mentioned that “[i]n
any event, the senior tax inspector [A.] committed perjury fully
knowingly and intentionally. But why not as her husband is the public
prosecutor [X.]. who works for [name of the office]”. Five
thousand copies of the book were printed, of which about a thousand
copies had been given away by the end of August 1999.
- On
18 November 1999 the applicant was questioned by the police for the
first time. The applicant gave her closing statement in the pre-trial
investigation on 27 January 2000.
- On
8 December 2000 the public prosecutor brought charges against the
applicant for aggravated defamation. Tax inspectors A. and B. joined
the charges and extended them to cover other statements made by her
during the above-mentioned tax fraud proceedings. The summons was
served on the applicant on 11 February 2001.
- On 15 March 2001 the applicant requested the Raahe
District Court (käräjäoikeus, tingsrätten)
to extend the time-limit for her reply until 30 September 2001.
The applicant informed the District Court that she would request the
National Bureau of Investigation (keskusrikospoliisi,
centralkriminalpolisen) to conduct
an investigation and that she would also request the Supreme
Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen)
to annul certain decisions of administrative courts underlying
her case. The District Court extended the time-limit for the reply
until 30 September 2001.
- On
26 September 2001 the applicant requested the District Court to grant
another prolongation of the time-limit for her reply as the
above-mentioned criminal investigation and the annulment proceedings
had not yet been concluded. The District Court extended the
time-limit for the reply until 28 February 2002.
- The
applicant did not give a written reply within the time-limit but
requested the District Court not to hold an oral hearing
before the Supreme Administrative Court had decided on
the annulment of the above-mentioned taxation cases.
16. On
2 October 2003 the District Court received the decision
of the Supreme Administrative Court concerning a request to
annul previous taxation decisions. The District Court held an oral
hearing in the defamation case in May 2004.
- On
26 July 2004 the District Court convicted the applicant, as far as
the statements made in the book were concerned, of aggravated
defamation and sentenced her to four months' conditional
imprisonment. Moreover, she was ordered to pay 5,000 euros to tax
inspector A. in compensation. The court found that, even though the
applicant might have been right about the dysfunctions in the company
taxation system, she should not have criticised the civil servants in
question in a defamatory manner. As far as the statements made during
the tax fraud proceedings were concerned, the court found them to
constitute defamation but not aggravated defamation. However, as the
charges for defamation had been brought too late she could not be
convicted on that count. Despite the prescription, the related
compensation claims could be examined and the applicant was ordered
to pay in total 4,000 euros in compensation to the tax
inspectors A. and B. for mental suffering under both counts. The
District Court declared all parts of the case file secret for fifteen
years except for the applicable legal provisions and the conclusions.
- On
27 September 2004 the applicant appealed to the Vaasa Appeal Court
(hovioikeus, hovrätten), claiming, inter alia,
that her rights under Articles 6 and 10 of the Convention had been
violated and that the act in question had not constituted aggravated
defamation. She also requested the Appeal Court not to start
preparing the case before the Council for Mass Media (Julkisen
sanan neuvosto, Opinionsnämnden för
massmedier – “the
Council”) had either given a statement on the matter or
notified the court that no statement would be made.
- On
14 December 2004 the Council notified the Appeal Court that it would
not give a statement on the matter. The Appeal Court held an oral
hearing in the case in January 2006.
- On
25 April 2006 the Appeal Court upheld, by a majority, the District
Court's judgment. It found that the interference with the applicant's
right to freedom of expression had been necessary and proportionate.
However, one of the justices found in his dissenting opinion that the
applicant should be freed from the obligation to pay compensation to
A. and B. under both counts as the applicant's criticism did not
exceed the limits of what was acceptable for civil servants to endure
in the exercise of their official duties. As to the length of the
proceedings, the court did not find it so excessive as to justify
mitigating or waiving the applicant's sentence. Finally, the Appeal
Court quashed the District Court's decision to declare the case file
secret.
- On
26 June 2006 the applicant appealed to the Supreme Court (korkein
oikeus, högsta domstolen), reiterating the grounds for
appeal relied on before the Appeal Court.
- On
2 March 2007 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW
- According
to Chapter 3 (515/2003), section 2, of the Penal Code (rikoslaki,
strafflagen), the law which was in force at the time an offence
was committed applies to that offence. However, if a law other than
the one in force at the time of the commission of the offence is in
force at the time of conviction, the new law applies if its
application leads to a more lenient result.
- Chapter
27, section 1, of the Penal Code, which was in force at the time when
the events took place, read as follows:
”A person alleging, albeit not contrary to his or
her better knowledge, that someone has committed an offence or other
act which might make this person an object of contempt or might
affect his or her trade or success, or who spreads a lie or a false
insinuation about someone, is to be convicted of defamation and
sentenced to imprisonment for at least one month and at most one year
or to a fine of at least one hundred marks.
If defamation is public or in a printed publication, in
writing or through pictures, which the accused distributes or had
distributed, the punishment is imprisonment of at least two months
and at most two years or a fine of at least two hundred marks.”
- Chapter
24 (531/2000), section 9, of the Penal Code, which was in force at
the time of conviction, read as follows:
“A person who (1) spreads false information or a
false insinuation about another person so that the act is conducive
to causing damage or suffering to that person, or subjecting that
person to contempt, or (2) makes a derogatory comment about another
otherwise than in a manner referred to in subparagraph (1), shall be
sentenced for defamation to a fine or to imprisonment for at most six
months.
Criticism that is directed at a person's activities in
politics, business, public office, public position, science, art or
in a comparable public position and which does not obviously overstep
the limits of propriety does not constitute defamation referred to in
paragraphs (1) and (2).”
- Chapter
24, section 10, of the Penal Code provides that if, in the defamation
referred to in section 9, the offence is committed through the use of
the mass media or otherwise by making the information or insinuation
available to a large number of people, the offender shall be
sentenced for aggravated defamation to a fine or to
imprisonment for at most two years.
III. RELEVANT INTERNATIONAL MATERIALS
- On
4 October 2007 the Parliamentary Assembly of the Council of Europe
adopted Resolution 1577 (2007), Towards decriminalisation of
defamation, in which it urged those member States which still
provide for prison sentences for defamation, even if they are not
actually imposed, to abolish them without delay.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the total length of her criminal
proceedings had been incompatible with the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention,
which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
period to be taken into consideration began on 18 November 1999
when the applicant was first questioned by the police and ended on
2 March 2007 when the Supreme Court refused leave to appeal. It
thus lasted over seven years and three months at three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Government pointed out that, excluding the extensions of time-limits
given to the applicant by the domestic courts and the requests by the
applicant to postpone the case, the total length of the proceedings
attributable to the authorities would have been only about four years
and seven months. The applicant's own conduct had delayed the
proceedings by about two years and six months in the District Court
and by one month and nineteen days in the Appeal Court. The case had
been extensive and complex owing to the amount of trial material and
the subject-matter of the case. The Government considered that there
had been no periods of inactivity or unnecessary delays.
- The
applicant claimed that she could not be held responsible for the
delays as the reason for the extensions of the time-limit and for the
postponements had been the fact that the issues had still been
pending before the National Bureau of Investigation and the Supreme
Administrative Court, a fact that had been beyond her control. The
case had not been extensive.
- The
Court notes that the pre-trial investigation and the consideration of
charges lasted for about one year, the proceedings before the
District Court over three years and seven months and the proceedings
before the Appeal Court almost one year and seven months. During the
court proceedings the applicant twice requested an extension of
time-limits and on two occasions also that the case be postponed to a
later stage. The Court considers that, while it is true that the
applicant had made such requests, these requests alone do not explain
the excessive length of the proceedings. Each extension granted by
the District Court was several months long. The District Court also
agreed to postpone the oral hearing for more than one and a half
years pending the outcome of the proceedings in the Supreme
Administrative Court. When these latter proceedings were concluded in
September 2003, it took another eight months before an oral hearing
was held in the District Court. Similarly, in the Appeal Court the
applicant's request for postponement only explains a delay of three
months while it took the Appeal Court over one year to organise an
oral hearing.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant further complained that her right to freedom of expression
had been violated as she had been convicted of defamation for the
statements made in her book and ordered to pay compensation for those
statements as well as the statements made in court proceedings. She
relied on Article 10 of the Convention which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes 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 pointed out that everyone had the right to freedom of
expression, including freedom to have opinions and to disclose
information and ideas. As a witness in court proceedings, she had
been bound by oath to speak the truth. She had not been told in
advance that by telling the truth she would be charged with
defamation. Her calculations had not been proved incorrect by any of
the domestic courts and her accusations had therefore not been false.
The applicant was a tax expert, not a journalist, who had expressed
her opinion, which she believed to be true, in the matter. The
freedom of expression was guaranteed in the Constitution and this
basic right could not be the subject of derogation in application of
the Penal Code provisions.
- As
to the book, the applicant claimed that she had only told the truth:
tax inspector A. had committed a perjury and had not yet been
charged. The book had only presented the facts as they had emerged
during the tax proceedings.
(b) The Government
- The
Government agreed that the conviction of the applicant and the
obligation to pay damages and costs had amounted to an interference
with her right to freedom of expression.
- As
to the requirement that that interference be “prescribed by
law”, the Government pointed out that the applicant had not
questioned this. In any event, the impugned measures had had a basis
in Finnish law, namely in the Constitution and, in particular, in
Chapter 27, section 1, of the Penal
Code, as in force at the relevant time. Moreover, the interference
complained of had had a legitimate aim, namely the protection of the
reputation or rights of others.
- As
to the “necessity” requirement, the Government pointed
out that the applicant had appeared as an expert
witness in district court proceedings and in that capacity she had
been expected to present an alternative estimation to the
calculations made by the tax inspectors A. and B. In this capacity,
as a tax expert, the applicant had accused A. and B. of serious
misconduct in office and of actual persecution of taxpayers. These
comments, due to the public attention focused on the case, had been
reported by the mass media and had later, in 1998, been published in
her book about taxation.
- Both
the District Court and the Appeal Court had found that the applicant
had not been able to justify her allegations, which had been the
basis for her conviction. In the Government's view, the applicant's
allegations exceeded the limits of acceptable criticism and they
could not be considered as attempts to provoke public discussion
about the conduct of the tax authorities. This was even more so
taking into account that the defendant in the proceedings in which
the applicant had given a witness statement, had been convicted of
aggravated tax fraud and the calculations of the tax inspectors had
been confirmed by all levels of jurisdiction.
- The
applicant's allegations could be considered as constituting personal
insults which had been conducive to subjecting the tax inspectors to
contempt and to causing damage both to their professional ability and
their private lives. In particular the allegations made in the
applicant's book constituted criticism of A. personally. The
applicant must have understood that her allegations would gain wide
publicity.
- Moreover,
the domestic courts had attached importance to all the facts of the
case that had been relevant in assessing whether the interference
with the applicant's freedom of expression had been “necessary”.
Referring to the margin of appreciation, the Government concluded
that the impugned measures corresponded to a “pressing social
need” and were “proportionate to the legitimate aim
pursued”, and that the reasons given by the national
authorities to justify them were “relevant and sufficient”.
2. The Court's assessment
1. Whether there was an interference
- The
Court agrees with the parties that the applicant's conviction, the
conditional prison sentence imposed on her and the award of damages
and costs constituted an interference with her right to freedom of
expression, as guaranteed by Article 10 § 1 of the Convention.
2. Whether it was prescribed by law and
pursued a legitimate aim
- The
Court notes that, according to the Government the impugned measures
had a basis in Finnish law, namely in the Constitution and, in
particular, in Chapter 27, section 1,
of the Penal Code. Moreover, the interference complained of had a
legitimate aim, namely the protection of the reputation or rights of
others. The applicant claimed that freedom of
expression could not be derogated from in application of the Penal
Code provisions.
- The
Court notes that freedom of expression is subject to the exceptions,
set out in Article 10 § 2 of the Convention. The Court accepts
that the interference was based on Chapter 27, section 1, of the
Penal Code, as in force at the relevant time. It was thus “prescribed
by law” (see Nikula v. Finland, no. 31611/96, § 34,
ECHR 2002 II; Selistö v. Finland, no. 56767/00,
§ 34, 16 November 2004, Karhuvaara and Iltalehti v.
Finland, no. 53678/00, § 43, ECHR 2004 X,
and Eerikäinen and Others v. Finland, no.
3514/02, § 58, 10 February 2009) and it pursued the
legitimate aim of protecting the reputation or rights of others,
within the meaning of Article 10 § 2.
3. Whether the interference was necessary
in a democratic society
- According
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2 of Article 10 of
the Convention, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2, which must, however, be strictly construed. The
need for any restrictions must be established convincingly (see, for
example, Lingens v. Austria, 8 July 1986, § 41, Series A
no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 43, ECHR 1999-VIII).
- The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
- In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks made by the applicant and the context in
which she made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
(see Sunday Times v. the United Kingdom (no. 1), 26 April
1979, § 62, Series A no. 30; Lingens v. Austria, cited
above, § 40; Barfod v. Denmark, 22 February 1989, §
28, Series A no. 149; Janowski v. Poland, cited above, §
30; and News Verlags GmbH & Co.KG v. Austria, no.
31457/96, § 52, ECHR 2000 I). In doing so, the Court has to
satisfy itself that the national authorities applied standards which
were in conformity with the principles embodied in Article 10
and, moreover, that they based themselves on an acceptable assessment
of the relevant facts (see Jersild v. Denmark, 23 September
1994, § 31, Series A no. 298).
- The
Court reiterates that civil servants acting in an official capacity
are, like politicians, subject to wider limits of acceptable
criticism. Admittedly those limits may in some circumstances be wider
with regard to civil servants exercising their powers than in
relation to private individuals. However, it cannot be said that
civil servants knowingly lay themselves open to close scrutiny of
their every word and deed to the same extent as politicians and
should therefore be treated on an equal footing with the latter when
it comes to the criticism of their actions (see Nikula v. Finland,
cited above, § 48).
- In
sum, the Court's task in exercising its supervision is not to take
the place of the national authorities but rather to review under
Article 10, in the light of the case as a whole, the decisions they
have taken pursuant to their power of appreciation (see, among many
other authorities, Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I).
- Turning
to the facts of the present case, the Court will first examine the
statements made by the applicant during the court proceedings in
which she was the defendant's witness.
- The
Court notes that, during the tax fraud proceedings, the applicant was
questioned by the prosecutor and the defendant's counsel. It appears
from the court transcripts that the applicant replied to these
questions in a concise manner and did not expand on her answers any
further than was necessary. Moreover, she was speaking under oath.
- The
Court further notes that the court proceedings as well as the
applicant's statements were reported in several newspapers but the
tax inspectors' names were not mentioned in any of the reports. The
court proceedings were open to the public and the applicant's witness
statements were recorded word for word in the minutes, to which
anybody had access. Moreover, the District Court found that the
applicant had not actively drawn the media's attention to herself or
to her statements, nor could she have prevented her statements from
being reported in the media.
- The
Court observes that the applicant's criticism was directed against
the tax inspectors, who were civil servants. Furthermore, she
impugned their conduct in the defendant's case and accused them of
having committed an offence in office.
- The
Court recalls that Article 10 protects not only the substance of the
ideas and information expressed but also the form in which they are
conveyed. The parties' freedom of expression in the courtroom is not
unlimited and certain interests, such as the authority of the
judiciary, are important enough to justify restrictions on this
right. Nonetheless, the Court refers to its case-law to the effect
that it is only in exceptional circumstances that restriction –
even by way of a lenient criminal penalty – of for example
defence counsel's freedom of expression can be accepted as necessary
in a democratic society (see Nikula, cited above, §§
54-55; and Kyprianou v. Cyprus [GC], no. 73797/01, § 174,
ECHR 2005 XIII). For the Court, similar considerations should
apply in respect of statements made by witnesses testifying before a
court.
- Moreover,
the Court is mindful of the fact that an interference with freedom of
expression in the course of a trial could also raise an issue under
Article 6 of the Convention with regard to the right of an accused to
a fair trial. Although the parties' freedom of expression should not
be unlimited, “equality of arms” and other considerations
of fairness can militate in favour of a free exchange of argument
between the parties (see Nikula v. Finland, cited above, §
49).
- It
is the duty of the courts and the presiding judge to direct
proceedings in such a manner as to ensure the proper conduct of the
parties and above all the fairness of the trial – rather than
to examine in a subsequent trial the appropriateness of a party's
statements in the courtroom (see Nikula v. Finland, cited
above, § 53). In the present case the trial judge did not
intervene or ask the applicant to retract her statement. Nor was the
applicant warned of the consequences of the gravity of her statement.
It was at no stage alleged that she was guilty of contempt of court.
Furthermore, the adversarial nature of the proceedings enabled the
tax inspectors to discredit the applicant's accusations. The Court
would stress that the applicant appeared in the tax proceedings as a
witness for the defence, and that she only replied to the questions
put to her.
- As
to the severity of the penalty, the Court notes that the applicant
could not be convicted due to prescription but she was ordered to pay
in total 4,000 euros in compensation to A. and B. for mental
suffering.
- In
view of the above considerations, as concerns the statements made by
the applicant during the court proceedings, the Court finds that, in
the context of those proceedings, the tax inspectors could have been
reasonably expected to tolerate the statements made by the applicant
under oath in her capacity as the defendant's witness (see Nikula
v. Finland, cited above, § 51), especially as the
applicant was obliged to answer the questions put to her and she
could not but give her view of the facts. Viewed against this
background and in the absence of exceptional circumstances supporting
a different conclusion (see paragraph 62 above), the Court is not
persuaded that the national courts, acting within their margin of
appreciation, struck a reasonable balance between the interests
involved in respect of this part of the case.
- As to the statements made in the applicant's book, the
Court notes that the book could be characterised as a polemical
document or pamphlet attempting to contribute to a public debate. The
book mainly described the applicant's views about the actions of the
tax authorities, including that of tax inspector A. For her
statements made in the book the applicant was sentenced to four
months' conditional imprisonment and ordered to pay 5,000 euros to
tax inspector A. in compensation. Although sentencing is in principle
a matter for the national courts, the Court considers that the
imposition of a prison sentence for a defamation offence will be
compatible with an applicant's right to freedom of expression as
guaranteed by Article 10 of the Convention only in exceptional
circumstances, notably where other fundamental rights have been
seriously impaired, as, for example, in the case of hate speech or
incitement to violence (see Cumpǎnǎ and Mazǎre v.
Romania [GC], no. 33348/96, § 115, ECHR 2004-XI; and
mutatis mutandis, Feridun Yazar v. Turkey, no.
42713/98, § 27, 23 September 2004; and Sürek
and Özdemir v. Turkey [GC], nos. 23927/94
and 24277/94, § 63, 8 July 1999).
- The circumstances of the instant case – a
classic case of defamation of an individual in the context of a
debate on an important matter of legitimate public interest, namely
the actions of the tax authorities – present no justification
whatsoever for the imposition of a prison sentence. Such a sanction,
by its very nature, will inevitably have a chilling effect on public
debate. The fact that the applicant's prison sentence was conditional
and that she did not in fact serve it does not alter that conclusion.
Although the national authorities' interference with the applicant's
right to freedom of expression may have been justified by the concern
to strike the balance between the various competing interests at
stake, the criminal sanction and the accompanying obligation to pay
compensation imposed on her by the national courts were manifestly
disproportionate in their nature and severity, having regard to the
legitimate aim pursued by the applicant's conviction for defamation.
- The
Court would further observe that the Parliamentary Assembly of the
Council of Europe in its Resolution 1577 (2007) urged those member
States which still provide for prison sentences for defamation, even
if they are not actually imposed, to abolish them without delay (see
paragraph 27 above).
- The
Court finds that the severity of the sanctions imposed of itself went
beyond a “necessary” restriction on the applicant's
freedom of expression. For that reason, there is no need to examine
more closely the nature of the statements made in her book. Having
regard to this part of the case and notwithstanding the margin of
appreciation afforded to the State in this area, the domestic courts
failed to strike a fair balance between the competing interests at
stake.
- There has therefore been a violation of Article 10 of
the Convention in respect of the statements made by the applicant
during the court proceedings as well as in respect of the statements
made in her book.
III. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 1 of the
Convention that the Appeal Court had
not re-assessed the evidence in her case and under
Article 6 § 3 (d) that her witnesses had not been given the
possibility to testify and that, if they had, their testimonies had
not been reflected in the Appeal Court's judgment. Moreover, she
complained under Article 6 § 2 of the Convention that the
presumption of innocence had been violated as the public prosecutor
could not prove her calculations wrong or her to be guilty. Finally,
the applicant complained under Article 13 of the
Convention that she had not had an effective remedy as the other
parties to the proceedings had been civil servants.
- The
Court finds, having regard to the case file, that the matters
complained of do not disclose any appearance of a violation of the
applicant's rights under the Convention. Accordingly, this part of
the application is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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 176,155 euros (EUR) in respect of pecuniary and EUR
270,000 in respect of non-pecuniary damage.
- The
Government noted that there had been no causal link between the
pecuniary damage accrued and the alleged violation of Article 6 of
the Convention. No compensation for pecuniary damage should be
awarded under this heading. In the event of a violation being found
under Article 10, the Government pointed out that the applicant had
not provided any proof of the pecuniary damage claimed nor any
receipt or other clarification of the payment of the amounts claimed.
Should the Court find that an award is to be granted under this
heading, it should not exceed EUR 33,390.84, that is, the total
amount of legal expenses ordered by the domestic courts to be paid by
the applicant as legal expenses of the opposing party. As to
non-pecuniary damage, the Government considered that a part of the
applicant's claims should be rejected as unfounded as they related to
non-communicated complaints. In any event, the applicant's claims
were excessive as to quantum and any award should not exceed
EUR 5,000.
- The
Court finds that there is a causal link between the violation found
under Article 10 and the alleged pecuniary damage. Consequently,
there is justification for making an award to the applicant under
this head. Having regard to all the circumstances, the Court awards
the applicant EUR 33,390.84 in compensation for pecuniary
damage. Moreover, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards the applicant EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 43,812 for the costs and expenses incurred
before the domestic courts and any other further costs and expenses
incurred during the proceedings.
- The
Government contested these claims. The Government maintained that no
specification relating to the costs and expenses, as required by Rule
60 of the Rules of Court, had been submitted. Moreover, it appeared
that the applicant had received legal aid. In any event, the
Government found the applicant's claims for costs and expenses, to
the extent the amounts had been specified, too high as to quantum
and that the total amount of compensation should not exceed EUR 7,500
(inclusive of value-added tax) in respect of the proceedings before
the domestic courts and EUR 2,000 in respect of the proceedings
before the Court.
- 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
considers it reasonable to award the sum of EUR 10,000 (inclusive of
value-added tax) covering costs under all heads.
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 complaints concerning the length of
the proceedings and the freedom of expression admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of proceedings;
- Holds that there has been a violation of Article
10 of the Convention in respect of the statements made by the
applicant during the court proceedings as well as in respect of the
statements made in her book;
- 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
33,390.84 (thirty-three thousand three hundred and ninety euros and
eighty-four cents), plus any tax that may be chargeable, in respect
of pecuniary damage;
(ii) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) 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 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
