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FOURTH
SECTION
CASE OF FLINKKILÄ AND OTHERS v. FINLAND
(Application
no. 25576/04)
JUDGMENT
STRASBOURG
6 April
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 Flinkkilä and
Others v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Päivi
Hirvelä,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25576/04) 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 four Finnish nationals, Mr Jouni Mikael
Flinkkilä, Ms Sanna Rakel Wirtavuori, Ms Jaana Helena Isosaari
and Mr Risto Valdemar Ainasoja (“the applicants”),
on 19 July 2004.
- The
applicants were represented by Mr Heikki Salo, 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
applicants alleged, in particular, that their right to freedom of
expression had been violated and that the Penal Code provision on the
basis of which they had been convicted was not clear enough.
- On
4 April 2008 the President of the Fourth Section decided to
communicate the complaints concerning the freedom of expression and
the legality principle 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
applicants were born in 1948, 1951, 1962 and 1951 respectively and
live in Helsinki, except for Ms Isosaari who lives in Ikkala.
- The
first and second applicants are editors-in-chief of the nationwide
magazine Seura and the third and fourth applicants are an
editor-in-chief and a journalist of the nationwide magazine
Nykyposti.
- On
4 December 1996 A., the National Conciliator (valtakunnansovittelija,
riksförlikningsmannen) at the time, and B., his female
friend, entered late at night A.'s home where his wife was present.
The situation escalated, the police were called and the incident,
which subsequently involved also A.'s grown-up children, led to A.'s
arrest. Due to the incident, criminal charges were brought against
both A. and B. on 18 December 1996. On 16 January 1997 the
Helsinki District Court (käräjäoikeus, tingsrätten)
sentenced A. to a four-month conditional prison sentence for
resisting arrest and for criminal damage (vahingonteko,
skadegörelse), and B. to a fine for assault. On 17 January
1997 the Council of State (valtioneuvosto, statsrådet)
dismissed A. from his post as National Conciliator. On 25 June 1998
the Appeal Court (hovioikeus, hovrätten) upheld the
judgment with respect to B. As regards A., the case had lapsed as he
had died on 14 May 1998. On 15 December 1998 the Supreme Court
(korkein oikeus, högsta domstolen) refused B. leave to
appeal.
- On
31 January and 1 March 1997, respectively, the magazines
published an article about A. The article of 31 January 1997 in Seura
magazine was based on A.'s interview, and B.'s name and age, together
with her picture, were mentioned once in the article. The article was
entitled “A.'s sincerity in the balance” and it
concerned A.'s feelings about his dismissal and his possible divorce
in the aftermath of the incident of 4 December 1996. The article
of 1 March 1997 in Nykyposti magazine, which was entitled
“Divorced wives' club”, also dealt inter alia
with A.'s possible divorce and his feelings about his dismissal. It
was claimed that A.'s divorce proceedings had accelerated due to the
incident of 4 December 1996, and B.'s name was mentioned
once in that context. This article contained no pictures of B. Prior
to these articles, B.'s identity had been revealed at least in a
Swedish newspaper on 21 January 1997 and in a Finnish nationwide
television broadcast on 23 January 1997.
- In
the spring of 1997 A. and B. requested that criminal investigations
be conducted against journalists who had written about the incident
on 4 December 1996 and the circumstances surrounding it. They
made such a request with respect to the applicants, claiming that the
articles published in Seura and Nykyposti had invaded
B.'s privacy. It appears that in regard to all but one of these
requests no charges were brought. On 17 September 1998 the
public prosecutor decided not to bring charges against the applicants
as, according to him, there was no indication of any crime.
- On
25 October 1998 B. complained to the Prosecutor General
(valtakunnansyyttäjä, högsta åklagaren)
about the decisions not to prosecute and asked him to reconsider the
cases. On 5 October 1999, after having considered the charges, the
Deputy Prosecutor-General requested the public prosecutor to bring
charges, inter alia, against the applicants. He reasoned his
decision by stating, inter alia, that the facts revealed in
the articles fell within the scope of private life and that no
derogation could be made in this case as B. was not a public figure.
- On
15 November 1999 the public prosecutor, by order of the Deputy
Prosecutor-General, brought charges against the applicants under
Chapter 27, section 3(a), paragraph 2 of the Penal Code. At the
same time charges were also brought against another journalist and
editor-in-chief of another magazine to be examined in the same
proceedings. This journalist and editor-in-chief have lodged a
separate appeal with the Court (see Tuomela and others v. Finland,
no. 25711/04, 6 April 2010).
- B.
concurred with the charges brought by the public prosecutor. On 4
January and 10 November 2000 she pursued a compensation claim against
all the applicants, which was joined to the criminal charges.
- Following
an oral hearing on 8 December 2000, the Espoo District Court rejected
all the charges on 15 December 2000, finding that the information
concerning B.'s private life in the article could not as such be
conducive to causing her particular suffering, except for the
information concerning her relationship with A. However, since the
incident of 4 December 1996 B. must have understood that she
could no longer seek protection on this ground. Thus, the applicants
had not been under a duty to assess whether revealing B.'s identity
could have caused her suffering. Furthermore, it had not been proved
that the applicants had had the intention of invading B.'s privacy.
Accordingly, all the compensation claims against the applicants were
also rejected.
- By
letters dated 10 and 14 January 2001, respectively, the public
prosecutor and B. appealed to the Helsinki Appeal Court, reiterating
the charges and the compensation claims. Moreover, on 17 September
2002 B. requested that the case file be declared secret for at least
ten years from the date of the judgment.
- In
its judgment of 15 May 2003, the Appeal Court first decided to
declare all parts of the case file secret for ten years except for
the applicable legal provisions and the conclusions. Additionally,
B.'s identity was not to be revealed in the public parts of the
judgment. The court found that the matter was very sensitive, that it
fell within the scope of private life, and that the secrecy accorded
did not violate Articles 6 or 10 of the Convention. As to the merits
of the case, the court, without holding an oral hearing, quashed the
District Court's judgment and sentenced the applicants to pay twenty
day-fines, amounting to 1,180 euros (EUR), EUR 1,100, EUR 1,020 and
EUR 120 respectively, for invasion of private life. Moreover, the
first and second applicants were ordered jointly to pay B. EUR 5,000
plus interest and the third and fourth applicants EUR 3,000 plus
interest for non-pecuniary damage as well as her costs and expenses
jointly with the publishing company. The applicants paid in total EUR
22,074.31 in fines and compensation.
- The
Appeal Court found that the facts mentioned in the articles were of a
kind to which the protection of private life typically applied. The
Supreme Court had already found in 2002 that the national television
broadcast on 23 January 1997, in which B.'s name had been
mentioned twice in the context of an interview with A., had invaded
her private life. B. did not hold such a position in society that the
exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code
was applicable. The fact that she was a friend of such a person and
that she had been involved in the incident that subsequently led to
the dismissal of A. from his post as National Conciliator did not
justify revealing her identity. The fact that B.'s identity as A.'s
friend had previously been revealed in the media did not justify the
subsequent invasion of her private life. The Penal Code provision in
question did not require that intent be shown; it was sufficient that
the dissemination of information about the private life of a person
was capable of causing him or her damage or suffering. The
applicants, therefore, had had no right to reveal facts relating to
B.'s private life or to publish her picture.
- By
letter dated 10 July 2003 the applicants applied for leave to appeal
to the Supreme Court, claiming, inter alia, that the provision
of the Penal Code in question did not define with sufficient clarity
which acts fell within its scope and that, as a result, the Penal
Code had been applied ex analogia. No intent had been shown,
and nor was the Appeal Court judgment adequately reasoned in this
respect. Moreover they claimed that, in declaring that the case file
was to remain secret, the Appeal Court had not given reasons which
would constitute sufficient grounds for the measure. Finally, the
Appeal Court had not even tried to indicate on what grounds freedom
of expression could be restricted in this case, and therefore the
Appeal Court judgment was in contradiction with Article 10 of the
Convention.
- On
20 January 2004 the Supreme Court refused the applicants leave to
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Legislation
- Section
10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform
för Finland, Act no. 94/1919, as amended by Act
no. 969/1995, which took effect on 1 August 1995 and
remained in force until 1 March 2000), provided:
“Everyone has the right to freedom of expression.
The right to freedom of expression entails the right to impart,
publish and receive information, opinions and other communications
without prior hindrance from anyone. More precise provisions on the
exercise of the right to freedom of expression shall be prescribed by
an Act of Parliament. Restrictions on pictorial programmes necessary
for the protection of children may be prescribed by an Act of
Parliament.
Documents and recordings in the possession of the
authorities are public, unless their publication has, for compelling
reasons, been specifically restricted by an Act. Everyone has the
right of access to public documents and recordings.”
The
same provision appears in Article 12 of the current Constitution of
2000 (Suomen perustuslaki, Finlands grundlag, Act
no. 731/1999).
- Section
8 of the Constitution Act (as amended by Act no. 969/1995)
corresponded to Article 10 of the current Constitution, which
provides that everyone's right to private life is guaranteed.
- Section
39 of the Freedom of the Press Act (painovapauslaki,
tryckfrihetslagen; Act no. 1/1919), as in force at the relevant
time, provided that the provisions of the Tort Liability Act applied
to the payment of compensation for damage caused by the contents of
printed material.
- Chapter
5, section 6, of the Tort Liability Act (vahingonkorvauslaki,
skadeståndslagen, Act no. 412/1974, as amended by Act no.
509/2004) stipulates that damages may also be awarded for distress
arising inter alia from an offence against liberty, honour,
home or private life. Under Chapter 5, section 1, of the said
Act, damages shall constitute compensation for personal injury and
damage to property. Section 2 provides that a person who has suffered
personal injury shall be entitled to damages to cover medical costs
and other costs arising from the injury, as well as loss of income
and maintenance and pain and suffering.
- According
to the government bill to amend the Tort Liability Act (HE 116/1998),
the maximum amount of compensation for pain and suffering from, inter
alia, bodily injuries had in the recent past been approximately
FIM 100,000 (EUR 16,819). In the subsequent government bill to amend
the Tort Liability Act (HE 167/2003, p. 60), it is stated that
no changes to the prevailing level of compensation for suffering are
proposed.
- Chapter
27 (as amended by Act no. 908/1974), section 3(a), of the Penal Code
(rikoslaki, strafflagen) read, at the relevant time, as
follows:
“A person who unlawfully, through the use of the
mass media or in another similar manner, publicly disseminates
information, an insinuation or an image depicting the private life of
another person, such as to cause him or her damage or suffering,
shall be convicted of invasion of privacy and sentenced to a maximum
term of imprisonment of two years or to a fine. A publication that
deals with a person's behaviour in a public office or function, in
professional life, in a political activity or in another comparable
activity, shall not be considered an invasion of privacy if the
reporting was necessary
for the purpose of dealing with a matter of importance to society.”
- In
the travaux préparatoires of the above-mentioned
provision (see government bill HE 84/1974) there was no precise
definition of private life but matters such as, inter alia,
family life, spare time activities, health and relationships and such
conduct in socially significant position that had no significance to
the relevant exercise of power, were considered as a part of private
life. It was further required that the act might have caused damage
or suffering. Such damage might have also been "immaterial
damage, which might have manifested itself in problems with social
interaction or respect". An ordinary person enjoyed the
strongest protection of private life. His or her involvement in an
incident with importance to society might have warranted an exception
to the protection. In any case, if an offence was of such a kind that
it could not be regarded as having social significance, it was a
matter to be protected as belonging to the sphere of private life,
otherwise the protection of private life did not restrict publishing.
Moreover, the publishing could not be to a greater extent than was
necessary. Thus, the necessity of mentioning a person's name or other
description of a person enabling identification was always subject to
careful consideration.
- In
2000, Chapter 27, section 3(a), of the Penal Code was replaced by
Chapter 24, section 8 (Act no. 531/2000). Under the new provision on
the injury of personal reputation (yksityiselämää
loukkaavan tiedon levittäminen, spridande av information som
kränker privatlivet), a person who unlawfully, through the
use of the mass media or in another manner, publicly spreads
information, an insinuation or an image of the private life of
another person in such a way that the act is conducive to causing
that person damage or suffering or subjecting that person to
contempt, shall be convicted of injuring personal reputation.
However, an act shall not constitute an injury to personal reputation
if it concerns the evaluation of that person's activities in a
professional or public capacity and if it is necessary for the
purpose of addressing a matter of importance to society.
27. According
to the travaux
préparatoires
(see government bill HE 184/1999), the content of the new
provision corresponds to the old Chapter 27, section 3(a), of the
Penal Code. The amendments and clarifications made to the existing
provision were mainly technical. The provision thus still restricts
the protection of the private life of persons having important
political or economic powers. This restriction, however, applies
only to the persons referred to, not to their close friends and
family. According to the Parliamentary Law Committee's Report
(lakivaliokunnan mietintö, lagutskottets betänkande
LaVM 6/2000), the purpose of that provision is to permit the
dissemination of information on the private life of such persons if
the information may be relevant in assessing the performance of their
functions.
- The
government bill HE 184/1999
further provides that in the assessment of interferences with private
life, the lawfulness of the interference and the concept of private
life are taken into account. A person's consent to the provision of
information has relevance in the assessment of the lawfulness of the
interference. Without explicit consent, there is
usually no reason to believe that the person in question would have
consented to the publication of information relating to private life
(see Parliamentary Law Committee's Report LaVM 6/2000). With
regard to the concept of private life, a reference is made to the
explanatory works concerning the Constitution's provisions on
fundamental rights and to the government bill HE 84/1974). Moreover,
private life is, in particular, protected against dissemination of
information which may be correct as such. In order for the act to be
punishable, it is necessary that the information concerns the private
life of the person in question (see the government bill HE 184/1999).
- Section
2 of the Act on the Publicity of Court Proceedings (laki
oikeudenkäynnin julkisuudesta, lag om offentlighet vid
rättegång; Act no. 945/1984), as in force at
the relevant time, provided that the name, profession and domicile of
the parties and the nature of the subject matter and the time and
place of a hearing were public information from the beginning of the
trial at the latest. Section 3 provided that the public had the right
to be present during hearings unless otherwise provided in the
relevant legislation. Section 9 stated that the provisions laid down
in the Openness of Government Activities Act (laki viranomaisten
toiminnan julkisuudesta, lag om offentlighet i myndigheternas
verksamhet: Act no. 621/1999) were applicable to trial
documents. Information and documents relating to a trial are, as a
rule, public once charges have been brought unless provided otherwise
by an Act.
Supreme Court practice
- The
Supreme Court decision (KKO 1980-II-99) concerned public
showing of a series of photographs of half-naked children. The act
was committed before the entry into force of Chapter
27, section 3(a), of the Penal Code and no criminal sanctions were
requested.
- In
a Supreme Court decision (KKO 1980 II 123) the following was
noted (summary from the Yearbook):
“The accused had picked up a photograph of the
plaintiff from the archives of a newspaper and published it in the
context of an electoral campaign without the plaintiff's consent. He
was convicted of a violation of private life and ordered, jointly
with the political organisations which had acted as publishers, to
pay damages for mental suffering.”
- On
11 June 1997 the Supreme Court delivered two decisions relating to
articles which had given information on cases of arson. The first
decision (KKO 1997:80) concerned a newspaper article (summary
from the Supreme Court's Yearbook):
“A newspaper published an article concerning cases
of arson, in which it was said that the suspect was the wife of the
head of a local fire department. As it was not even alleged that the
head of the fire department had any role in the events, there was no
justifiable reason for publishing the information on the marriage
between him and the suspect. The publisher, the editor-in-chief and
the journalist who wrote the article were ordered to pay compensation
for the suffering caused by the violation of the right to respect for
private life.”
- The
second decision (KKO 1997:81) concerned an article published
in a periodical, which was based on the afore-mentioned newspaper
article (see the previous paragraph) and on the records of the
pre-trial investigation and the court proceedings, but did not
indicate that the newspaper article had been used as a source
(summary from the Yearbook):
“Compensation was ordered to be paid for the
reason that the article violated the right to respect for private
life. Another issue at stake in the precedent was the relevance to
liability for damages and the amount of compensation of the fact that
the information had been reported in another publication at an
earlier stage.”
- The
article published in the periodical had similarly mentioned the name
and profession of the head of the fire department, although the
offence was not related to the performance of his duties. Thus, it
had not been necessary to refer to his position as head of the fire
department or to his marriage to the suspect in order to give an
account of the offence. The fact that the information had previously
been published in print did not relieve the defendants of their
responsibility to ensure, before publishing the information again,
that the article did not contain information insulting the persons
mentioned in it. The mere fact that the interview with the head of
the fire department had been published in the newspaper did not
justify the conclusion that he had also consented to its publication
in the periodical. Repeating a violation did not necessarily cause
the same amount of damage and suffering as the initial violation. The
readers of the newspaper and the periodical were partly different,
and the circulation of the newspaper apparently did not entirely
coincide with that of the periodical. Therefore, and considering the
differences in the content and tone of the articles, the Supreme
Court found it established that the article published in the
periodical was conducive to causing the head of the fire department
additional mental suffering. The events reported in the article did
not concern the plaintiff's conduct in the performance of his duties
as head of the fire department and it had not been necessary to
mention the complainant's name and profession for the purpose of
discussing a matter involving significant public interest or
reporting on the offences. By associating the complainant's name and
profession with the offences in question, the article had unlawfully
spread information and insinuations concerning his private life
likely to cause him damage and suffering. The disclosure of the
complainant's name and the emphasis on his occupation had amounted to
an insult. By again reporting on the matter two months after the
events had occurred, the periodical was found to have caused the
complainant additional suffering for which separate compensation was
to be paid.
- The Supreme Court's decision of 26 September 2001
(KKO 2001:96) concerned the publication in a magazine of
an article which had described a pending criminal case in which the
accused had been charged with, inter alia, aggravated fraud.
The article had been illustrated, without the accused's permission,
with another article published previously in another magazine and
with a picture of the accused published in that connection. The
accused's name had been given in the text of the article and she
could be recognised from the picture. The Supreme Court found that
the criminal case had no such social significance that would justify
its publication without the accused's permission and, consequently,
her private life had been invaded.
- The
Supreme Court's decision of 25 June 2002 (KKO 2002:55)
concerned the same facts as the present case: when interviewing A.,
B.'s name was mentioned in the television broadcast in January 1997,
that is, after they had been convicted. The court found that the
facts discussed in the television programme with regard to B. were
part of her private life and enjoyed the protection of privacy. The
fines imposed on her as punishment for the assault did not constitute
a criminal-law sanction justifying publication of her name. The
interviewer and the television company were ordered to pay B. damages
in the amount of EUR 8,000 for disclosing her identity in the
television programme.
- Another
decision of 4 July 2005 (KKO 2005:82) concerned an article
about a relationship between A., who worked as a press officer for a
candidate in the presidential elections, and B., the ex-spouse of a
TV journalist. A.'s photo was included in the article. The Supreme
Court, having assessed the provision on the invasion of privacy in
the Penal Code in the light of this Court's case-law, found that A.
did not hold a position that meant that such details of her private
life were of public importance. The article had thus invaded A.'s
privacy.
- In
a decision of 19 December 2005 (KKO 2005:136), the Supreme
Court noted that an offence was not a private matter of the offender.
In principle, however, a person convicted of and sentenced for having
committed an offence also enjoyed the right inherent in private life
to live in peace. According to the Personal Data Act, any information
about the commission of an offence and the resulting sentence
qualified as “sensitive” personal data. The publicity per
se of criminal proceedings and of related documents did not mean
that information made public during the proceedings could be freely
published as such by the media. The Supreme Court concluded that
publishing the name of a person convicted of, inter alia,
assault and deprivation of liberty did not invade his privacy as the
person concerned had been convicted of offences of violence which had
also degraded the victim's human dignity. Furthermore, the article in
question did not include his photo.
- The
Supreme Court's decision of 16 March 2006 (KKO 2006:20)
concerned the scope of the private life of a leading public
prosecutor whose name or identify had not been revealed in an article
which mainly concerned his wife who had been suspected of having
committed a crime. The Supreme Court concluded that the issue had had
social significance as the person under suspicion was the public
prosecutor's wife. Even though the public prosecutor could have been
identified from the article, this was justified by the fact that his
own impartiality as a prosecutor was at stake.
- In
the Supreme Court's latest decision of 22 January 2009 (KKO 2009:3)
A. had been convicted of incest with his children and the case file
was declared secret. Later A. revealed certain details of the case in
a television programme. The court found that even though the children
had remained anonymous in the programme, they could still be
identified through the fact that A. had appeared in the programme
undisguised and his first name had been given. The privacy of the
children and their mother had thus been invaded.
Self-regulation of journalists
- The
Union of Journalists in Finland (Suomen Journalistiliitto,
Finlands Journalistförbund ry) publishes Guidelines for
Journalists (Journalistin ohjeet, Journalistreglerna)
for the purposes of self-regulation. The 1992
Guidelines were in force at the material time and provided, inter
alia, that the publication of a name and other identifying
information in the context of reporting on offences was justified
only if a significant public interest was involved. The suspect's
identity was not usually to be published before a court hearing
unless there were important reasons relating to the nature of the
offence and the suspect's position which justified publication
(Article 26).
- New
Guidelines came into force in 2005, which noted that when publishing
public material regard must be had to the protection of private life.
The public nature of information does not necessarily mean that it
may be published. Special care must be observed when discussing
matters concerning a minor (Article 30). The name, photograph or
other identifying facts of a convicted criminal may be published
unless it is considered unjust in terms of his or her position or
offence. As regards a minor or an unaccountable person information
should be disclosed with restraint (Article 31). A journalist
must be careful not to present information that may lead to the
identification of a person in cases where he or she is only a suspect
or has merely been charged (Article 32).
- Also
the Council for Mass Media (Julkisen sanan neuvosto,
Opinionsnämnden för massmedier), which is a
self-regulating body established in 1968 by publishers and
journalists in the field of mass communication and whose task is to
interpret good professional practice and defend the freedom of speech
and publication, has issued a number of resolutions and statements,
inter alia, in 1980 and 1981. The former concerned the content
of private life and the latter disclosure of names in crime news
coverage.
- In
its statement of 1981, the Council for Mass Media stated, inter
alia, that according to the main principle of protection of
identity, it is justifiable to publish a person's name in crime news
coverage only if there is a significant public interest in doing so.
A journalist shall consider such publication separately in each
individual case, weighing the harm that may be caused to the person
concerned and to his or her family and close persons against the
general importance of publishing the name. Furthermore, the Council
stated that the aggravated, cruel or special nature of an act does
not alone suffice to justify disclosing the perpetrator's identity.
An offence may, however, arouse so much public attention as to
warrant publishing the name. Finally, the Council divided persons
into three groups as to the protection of identity: (1) persons
exercising political, economic or administrative power; (2) other
public persons, for example in the sectors of entertainment, sports,
arts or science; and (3) ordinary citizens. The Council noted that
the protection of identity is narrowest for group 1 and most
extensive for group 3.
III. RELEVANT INTERNATIONAL MATERIALS
- On
10 July 2003 the Committee of Ministers of the Council of Europe
adopted Recommendation No. Rec(2003)13 on the provision of
information through the media in relation to criminal proceedings. In
point 8 of the principles appended to the recommendation, it
considers as follows:
“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
commentary to the recommendation considers as follows (paragraphs 26
and 27):
“Everyone has the right to the protection of
private and family life under Article 8 of the European Convention on
Human Rights. Principle 8 recalls this protection for suspects, the
accused, convicted persons and other parties to criminal proceedings,
who must not be denied this right due to their involvement in such
proceedings. The mere indication of the name of the accused or
convicted may constitute a sanction which is more severe than the
penal sanction delivered by the criminal court. It furthermore may
prejudice the reintegration into society of the person concerned. The
same applies to the image of the accused or convicted. Therefore,
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.
An even stronger protection is recommended to parties
who are minors, to victims of criminal offences, to witnesses and to
the families of suspects, the accused and convicted persons. In this
respect, member states may also refer to Recommendation No. R (85) 11
on the position of the victim in the framework of criminal law and
procedure and Recommendation No. R (97) 13 concerning the
intimidation of witnesses and the rights of the defence.”
- 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 ARTICLES 7 AND 10 OF THE
CONVENTION
- The
applicants complained under Article 7 of the Convention that it had
not been clear from the Penal Code provision applied that their
conduct might be punishable, as the provision had not defined the
scope of private life. The convictions of A. and B. had been public
information that could not have fallen within the scope of private
life. Furthermore, even though a conviction for invasion of private
life allegedly required that intent be shown, the Appeal Court had
failed to state how this requirement had been fulfilled.
- The
applicants complained under Article 10 of the Convention that the
restrictions on their right to freedom of expression had not been
prescribed by law and had not been necessary in a democratic society
for the protection of the reputation or rights of others. The
disclosure of B.'s name had not fallen within the protection of
private life as the national courts had not declared any parts of her
criminal case file secret. She had been an active participant in the
incident of 4 December 1996 and had subsequently been sentenced to a
fine. The public had a right to know about issues of public interest,
especially in this type of case where the person concerned had been a
defendant in a high-profile criminal case. Moreover, the information
in the articles had been correct in every respect. The Appeal Court
had not even tried to indicate on what grounds freedom of expression
could have been restricted in this case. In any event, the
restrictions imposed on the applicants had been grossly
disproportionate, especially in view of their obligation to pay very
substantial damages in the case.
- Article
7 reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- Article
10 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 these arguments.
A. Admissibility
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicants
- The
applicants maintained that the conviction of the applicants and the
heavy sanctions inflicted on them had amounted to an interference
with their right to freedom of expression which had not been
prescribed by law, had had no legitimate aim and had not been
necessary in a democratic society.
- The
applicants argued that neither the provision in question, Chapter 27,
section 3(a), of the Penal Code, nor the preparatory works had
mentioned that the provision would apply to the publication of an
accused or convicted person's name. On the contrary, the
operative part of a judgment, the legal provisions applied and the
name of the convicted person had always been public information
according to Finnish law. Citing a convicted person's name in a
newspaper had not been traditionally an offence in Finland until 2001
and 2002, when the Supreme Court had come to a different conclusion.
However, it did not follow from either the provisions or the
preparatory works that publication of a convicted person's name was
criminal and it had even been mentioned in the government bill (HE
184/1999) that the general nature of Chapter
27, section 3(a), of the Penal Code might be
problematic from the point of view of the legality principle. In
Finnish criminal law the use of a legal analogy to the detriment of
an accused was prohibited. As the articles in question had been
published in 1997 the applicants could not have foreseen what the
Appeal Court would decide more than six years later. Nor could they
have anticipated that the Supreme Court would start assessing these
cases differently in 2002.
- The
applicants pointed out that, as B.'s name had appeared in all of the
judgments in her criminal case, this public information could not
have become retrospectively private. Once somebody's name had become
public information, its publication could not be unlawful and could
not violate that person's private life. B.'s identity and the issues
discussed in the articles had already been published earlier.
Moreover, B. had not been a passive object of publicity but had
participated actively in an incident of public interest. No margin of
appreciation could exist at the expense of the legality principle or
the freedom of expression. The amount of sanctions inflicted on the
applicants, including the fines, the compensation and the legal
costs, had been such that it alone constituted a violation of Article
10.
(b) The Government
- The
Government agreed that the conviction of the applicants and the
obligation to pay damages and costs had amounted to an interference
with their right to freedom expression.
- As
to the requirement that measures be “prescribed by law”
and in compliance with Article 7, the Government pointed out that the
impugned measures had had a basis in Finnish law, namely in the
Constitutional Act and, in particular, in Chapter
27, section 3(a), of the Penal Code. B.'s name constituted
information referred to in the latter provision, which also
separately mentioned a picture, and thus the provision had fulfilled
the clarity requirement. At the relevant time the provision had been
in force more than 20 years and it had been interpreted by the
Supreme Court, prior to the publication of the impugned article, in
precedent cases KKO 1980 II 99
and KKO 1980 II 123.
The rules on criminal liability could thus be regarded as having been
gradually clarified through judicial interpretation in a manner which
had been consistent with the essence of the offence. The liability
therefore could reasonably have been foreseen.
59. Moreover,
the Guidelines for Journalists and the practice of the Council for
Mass Media, both of which had had some relevance in the matter, had
restricted the disclosure of a person's name in crime news coverage.
Offences were not automatically issues of private life, a fact that
had been confirmed by the Supreme Court's precedent in the case
KKO 2005:136.
As B. in the present case had been sentenced to a fine, this sentence
had not as such reduced the protection of her privacy. This
interpretation was also in line with the Court's case-law (see, for
example, Z v. Finland, 25 February 1997, §
99, Reports of Judgments and Decisions 1997 I, and P4
Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR
2003 VI). The Government thus argued that the applicants must
have been aware of the regulations concerning the freedom of
expression. In any event, they could have sought legal advice before
publishing the article. Accordingly, there was no violation of
Article 7 and the interference was “prescribed by law” as
required by Article 10 § 2 of the Convention.
- The
Government maintained that the legitimate aim had been to protect
B.'s private life, that is, the reputation and rights of others, and
that the interference had also been “necessary in a democratic
society”. Even though B. had been sentenced for an offence and
the proceedings had been mainly public, it did not mean that the
disclosure of B.'s name as such had been lawful. Under Finnish law
the fact that information was public did not automatically mean that
it could be published. Only persons convicted of aggravated offences
and sentenced to imprisonment, did not enjoy any protection of
personal identity or private life.
- The
Government pointed out that being the female friend of A. had not as
such made her a person in a socially significant position whose
private life could be limited. B.'s conduct had not in any way
contributed to any discussion of general interest but had been
intended to satisfy public curiosity. Notwithstanding the incident of
4 December 1996 and B.'s subsequent sentence, the information
published by the applicants had been of such a nature that it had
been covered by the protection of B.'s private life. The events could
have been reported without mentioning B. by name. Bearing in mind the
margin of appreciation, the Government argued that the interference
in the present case had been “necessary in a democratic
society”.
2. The Court's assessment under Article 10 of the Convention
1. Whether there was an interference
- The
Court agrees with the parties that the applicants' conviction, the
fines imposed on them and the award of damages constituted an
interference with their 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
- As
to whether the interference was “prescribed by law”, the
applicants argued that, at the time of the publication of the article
in question, the citing of a convicted person's name in a newspaper
had not been an offence in Finland and that they had not therefore
been able to foresee that criminal sanctions could be imposed on them
for having published B.'s name. The Government argued that the scope
of criminal liability had gradually
been clarified through judicial interpretation in a manner which had
been consistent with the essence of the offence and with good
journalistic practice and that, therefore, the liability could
reasonably have been foreseen.
- The
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter
27, section 3(a), of the Penal Code. The parties'
views, however, diverge as far as the foreseeability of the said
provision is concerned. The Court must thus examine whether the
provision in question fulfils the foreseeability requirement.
- The
Court has already noted that a norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
individual to regulate his conduct: he must be able - if need be with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable. Again, whilst certainty is
highly desirable, it may entail excessive rigidity and the law must
be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are a
question of practice (see Sunday Times v. the United Kingdom (no.
1), 26 April 1979, § 49, Series A no. 30 and mutatis
mutandis Kokkinakis v. Greece, 25 May 1993, § 40, Series
A no. 260 A).
- As
concerns the provision in question at the relevant time, Chapter 27,
section 3(a), of the Penal Code, the Court has already
found in the Eerikäinen case (see Eerikäinen and
Others v. Finland, no. 3514/02, § 58,
10 February 2009) that it did not discern any ambiguity as to its
contents: the spreading of information, an insinuation or an image
depicting the private life of another person which was conducive to
causing suffering qualified as invasion of privacy. Furthermore, the
Court notes that the exception in the second sentence of the
provision concerning persons in a public office or function, in
professional life, in a political activity or in another comparable
activity is equally clearly worded.
- While
it is true that at the time when the articles in question were
published, in January and March 1997 respectively, there were only
two Supreme Court decisions concerning the interpretation of the
provision in question, both of which concerned public dissemination
of photographs, the Court finds that the possibility that a sanction
would be imposed for invasion of private life was not unforeseeable.
Even though there was no precise definition of private life in the
preparatory works (see government bill HE 84/1974), they mentioned
that the necessity of mentioning a person's name or other description
of a person enabling identification was always subject to careful
consideration. Had the applicants had doubts about the exact scope of
the provision in question they should have either sought advice about
its content or refrained from disclosing B.'s identity. Moreover, the
applicants, who were professional journalists, could not claim to be
ignorant about the content of the said provision since the
Guidelines for Journalists and the practice of the Council for Mass
Media, although not binding, provided even more strict
rules than the Penal Code provision in question.
- The
Court concludes therefore that the interference was “prescribed
by law” (see Nikula v. Finland, no. 31611/96, § 34,
ECHR 2002 II; Selistö v. Finland, no. 56767/00,
§ 34, 16 November 2004 and Karhuvaara and Iltalehti v.
Finland, no. 53678/00, § 43, ECHR 2004 X,
Eerikäinen and Others v. Finland, cited above,
§ 58). In addition, it has not been disputed that the
interference 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).
- The
Court's task in exercising its supervision is not to take the place
of 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).
- 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 applicants and the context in
which they 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), cited above
§ 62, Series A no. 30; Lingens, cited above, §
40; Barfod v. Denmark, 22 February 1989, § 28,
Series A no. 149; Janowski, 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 further emphasises the essential function the press fulfils in
a democratic society. Although the press must not overstep certain
bounds, particularly as regards the reputation and rights of others
and the need to prevent the disclosure of confidential information,
its duty is nevertheless to impart – in a manner consistent
with its obligations and responsibilities – information and
ideas on all matters of public interest (see Jersild, cited
above, § 31; De Haes and Gijsels v. Belgium,
24 February 1997, § 37, Reports of Judgments and
Decisions 1997 I; and Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not
only do the media have the task of imparting such information and
ideas: the public also has a right to receive them (see, Sunday Times
v. the United Kingdom (no. 1), cited above, § 65). In
addition, the Court is mindful of the fact that journalistic freedom
also covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, 26 April
1995, § 38, Series A no. 313, and Bladet Tromsø
and Stensaas, loc. cit.).
- The limits of permissible criticism are wider as
regards a politician as such than as regards a private individual.
Unlike the latter, the former inevitably and knowingly lay themselves
open to close scrutiny of their words and deeds by journalists and
the public at large, and they must consequently display a greater
degree of tolerance (see, for example, Lingens v. Austria,
cited above, § 42; Incal v. Turkey, 9 June 1998, § 54,
Reports of Judgments and Decisions 1998 IV; and Castells
v. Spain, 23 April 1992, § 46, Series A no. 236).
- However,
the freedom of expression has to be balanced against the protection
of private life guaranteed by Article 8 of the Convention. The
concept of private life covers personal information which individuals
can legitimately expect should not be published without their consent
and includes elements relating to a person's right to their image.
The publication of a photograph thus falls within the scope of
private life (see Von Hannover v. Germany, no.
59320/00, §§ 50-53 and 59, ECHR 2004 VI).
- In
the cases in which the Court has had to balance the protection of
private life against freedom of expression, it has stressed the
contribution made by photos or articles in the press to a debate of
general interest (see Tammer v. Estonia, no. 41205/98, §§
59 et seq., ECHR 2001-I; News Verlags GmbH & Co.
KG v. Austria, cited above, §§ 52 et seq.; and
Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96,
§§ 33 et seq., 26 February 2002). The Court thus
found, in one case, that the use of certain terms in relation to an
individual's private life was not “justified by considerations
of public concern” and that those terms did not “[bear]
on a matter of general importance” (see Tammer, cited
above, § 68) and went on to hold that there had not been a
violation of Article 10. In another case, however, the Court attached
particular importance to the fact that the subject in question was a
news item of “major public concern” and that the
published photographs “did not disclose any details of [the]
private life” of the person in question (see Krone Verlag
GmbH & Co. KG, cited above, § 37) and held that
there had been a violation of Article 10.
- Moreover,
one factor of relevance is whether freedom of expression was used in
the context of court proceedings. While reporting and commenting on
court proceedings, provided that they do not overstep the bounds set
out above, contributes to their publicity and is thus perfectly
consonant with the requirement under Article 6 § 1 of the
Convention that hearings be public, it is to be noted that the public
nature of court proceedings does not function as a carte blanche
relieving the media of their duty to show due care in communicating
information received in the course of those proceedings (see Council
of Europe Recommendation No. Rec(2003)13 on the provision of
information through the media in relation to criminal proceedings;
paragraphs 45 and 46 above). In this connection, the Court notes that
the Finnish Guidelines for Journalists, as in force at the relevant
time, stated that the publication of a name and other identifying
information in this context was justified only if a significant
public interest was involved (see paragraph 41 above).
- The
Court has balanced in its recent case-law the protection of private
life against the interest of the press to inform the public on
matters of public concern in the context of court proceedings (see
for example Eerikäinen and Others v. Finland, cited
above; and compare Egeland and Hanseid
v. Norway, no. 34438/04, 16 April
2009).
- Turning
to the facts of the present case, the Court notes that the applicants
were convicted on the basis of the remarks made in two articles in
their capacity as a journalist or as editors-in-chief.
- The
Court observes at the outset that the article of 31 January 1997 in
Seura magazine was based on A.'s interview and B.'s name and
age, together with her picture, were mentioned once in the article.
The article was entitled “A.'s sincerity in the balance”
and it concerned A.'s feelings about his dismissal and his possible
divorce in the aftermath of the incident of 4 December 1996. The
article of 1 March 1997 in Nykyposti magazine, which was
entitled “Divorced wives' club”, also dealt, inter
alia, with A.'s divorce and his feelings about his dismissal. It
was claimed that A.'s divorce proceedings were accelerated due to the
incident of 4 December 1996, and B.'s name was mentioned
once in that context. This article contained no pictures of B.
- The
Court notes that there is no evidence, or indeed any allegation, of
factual misrepresentation or bad faith on the part of the applicants.
Nor is there any suggestion that details about B. were obtained by
subterfuge or other illicit means (compare Von Hannover v.
Germany, cited above, § 68). The facts set out in the
articles in issue were not in dispute even before the domestic
courts.
- It
is clear that B. was not a public figure or a politician but an
ordinary person who had been the subject of criminal proceedings (see
Schwabe v. Austria, 28 August 1992, § 32, Series A
no. 242 B). Her status as an ordinary person enlarges the
zone of interaction which may fall within the scope of private life.
The fact that she had been the subject of criminal proceedings cannot
deprive her of the protection of Article 8 (see Sciacca v. Italy,
no. 50774/99, § 28-29, ECHR 2005 I; Eerikäinen
and Others v. Finland, cited above; and
Egeland and Hanseid v. Norway, cited above).
- However,
the Court notes that B. was involved in a public disturbance outside
the family home of A., a senior public figure who was married and
with whom she had developed a relationship. Criminal charges were
preferred against both of them. They were later convicted as charged.
The Court cannot but note that B., notwithstanding her status as a
private person, can reasonably be taken to have entered the public
domain. For the Court, the conviction of the applicants was backlit
by these considerations and they cannot be discounted when assessing
the proportionality of the interference with their Article 10 rights.
- The
Court further observes that the information in the two articles
mainly focused on A.'s behaviour, and that it contained information
volunteered by A. in the course of an interview, namely about the
consequences of his involvement in the incident of 4 December 1996
and his subsequent dismissal and conviction. No details of B.'s
private life were mentioned, save for the fact that she was involved
in the incident of 4 December 1996 and that she was A.'s female
friend, both circumstances being already public knowledge before the
publication of the articles in issue. Thus, the information
concerning B. was essentially limited to her conviction and to facts
which were inherently related to A.'s story. In this respect the case
differs from the case of Von Hannover v. Germany (cited
above, § 72).
- Moreover,
it is to be noted that the disclosure of B.'s identity in the
reporting had a direct bearing on matters of public interest, namely
A.'s conduct and his ability to continue in his post as a high-level
public servant. As B. had taken an active and willing part in the
events of 4 December 1996, leading to A.'s conviction and
dismissal, it is difficult to see how her involvement in the events
was not a matter of public interest. Therefore, the Court considers
that there was a continuing element of public interest involved also
in respect of B. In this connection, the Court notes that the
national authorities and the national courts reached very different
conclusions as to whether B. could be considered as having waived her
right to privacy when choosing to become involved with a public
figure and in being a party to the incident of 4 December 1996,
leading also to her conviction. In the Court's opinion this indicates
that, at least to some degree, the national authorities also
considered that the public interest was engaged in the reporting.
- The
Court further notes that the emphasis in the articles in question was
clearly on A.'s feelings after his dismissal and conviction, and on
the repercussions of the incident on his family life. One of the
articles was based on A.'s interview. It is possible that the events
were presented in a somewhat colourful manner to boost the sales of
the magazines, but this is not in itself sufficient to justify the
applicants' conviction.
- The
Court next observes that the incident of 4 December 1996 and the
subsequent dismissal of A. and the convictions of A. and B. had been
widely publicised and discussed in the media, including in a
programme broadcast nationwide on prime-time television (see
paragraphs 8 and 36 above). Thus, the articles in question did not
disclose B.'s identity in this context for the first time (see
Eerikäinen and Others v. Finland, cited above;
and Egeland and Hanseid v. Norway, cited above).
- Moreover,
the Court notes that the articles were published right after the
convictions of A. and B., leading to the dismissal of A. The articles
were thus closely linked in time to these events.
- Finally,
the Court has taken into account the severity of the sanctions
imposed on the applicants. It notes that the applicants were
convicted under criminal law and observes that they were all ordered
to pay twenty day-fines, amounting to EUR 1,180, EUR 1,100, EUR 1,020
and EUR 120 respectively. In addition, all the defendants, together
with the publishing company, were ordered to pay damages jointly and
severally in a total amount of EUR 8,000. The severity of the
sentence and the amounts of compensation must be regarded as
substantial, given that the maximum compensation afforded to victims
of serious violence was approximately FIM 100,000 (EUR 17,000)
at the time (see paragraph 23 above).
- It
should also be borne in mind that the Supreme Court had already
acknowledged that repeating a violation did not necessarily cause the
same amount of damage and suffering as the initial violation (see
paragraphs 33 and 34 above).
The Court notes that B. had already been paid damages in the amount
of EUR 8,000 for the disclosure of her identity in the television
programme (see paragraph 36 above). Similar damages had been ordered
to be paid to her also in respect of other articles published in
other magazines which all stemmed from the same facts (see cases
Tuomela and others v. Finland, cited above; Jokitaipale and
others v. Finland, no. 43349/05, 6 April 2010; Soila v.
Finland, no. 6806/06, 6 April 2010; and Iltalehti and
Karhuvaara, no. 6372/06, 6 April 2010).
- The
Court considers that such severe consequences, viewed against the
background of the circumstances resulting in the interference with
B.'s right to respect for her private life, were disproportionate
having regard to the competing interest of freedom of expression.
- In
conclusion, in the Court's opinion the reasons relied on by the
Appeal Court, although relevant, were not sufficient to show that the
interference complained of was “necessary in a democratic
society”. Moreover, the totality of the sanctions imposed were
disproportionate. Having regard to all the foregoing factors, and
notwithstanding the margin of appreciation afforded to the State in
this area, the Court considers that 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.
3. The Court's assessment under Article 7 of the Convention
- In
view of the finding under Article 10 of the Convention that the
interference was in accordance with the law, the Court finds that
there has been no violation of Article 7 of the Convention in the
present case.
II. REMAINDER OF THE APPLICATION
- The
applicants also complained under Article 6 § 1 of the Convention
that the Appeal Court had not reasoned its judgment sufficiently and
that it had violated the principle of equality of arms as the
applicants, contrary to the public prosecutor and B., had not had
access to the Supreme Court case file in an earlier, related case.
Moreover, they claimed that the Appeal Court's decision that their
case file remain secret had not been sufficiently reasoned and
therefore violated Article 6 § 1 of the Convention.
- As
to the earlier Supreme Court judgment, the Court notes that the
judgment had been relied on by B. and that the applicants had been
able to comment on it. It had been published in an extensive version
on the Internet as an official publication. Since the judgment was
thus publicly available and it seemed to contain all the relevant
information for the applicants to prepare their defence, there is no
indication of any violation in this respect. It follows that this
complaint must be rejected as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
- As
to the reasoning, the Court notes that Article 6 § 1 obliges
courts to give reasons for their decisions, but cannot be understood
as requiring a detailed answer to every argument (see Van de Hurk
v. the Netherlands, 19 April 1994, § 61, Series A no.
288). In general, the reasoning in the Appeal Court's judgment in the
present case is quite extensive. As far as the reasoning concerns the
restrictions on freedom of expression, the court basically stated
that the facts mentioned in the article were those to which the
protection of private life typically applied, that B.'s position in
society was not such that the exception for public figures applied to
her, and that neither the incident nor the fact that her identity had
been revealed earlier led to any other conclusion. Moreover, the
Penal Code provision in question did not require any intent to harm
to be shown. Therefore the Court finds that the reasoning is
acceptable from the standpoint of the fairness requirements of
Article 6.
- As to the reasons for declaring the case file secret,
the Court notes that the Appeal Court referred to Articles 6 § 1
and 10 of the Convention and concluded that the case contained
sensitive private information and that secrecy was not in
contradiction with these Articles. The Court considers that the
declaring secret of the case file had no impact on the applicants'
position as parties to the case nor on the actual fairness of the
proceedings. Also in this respect, the Court finds the Appeal Court's
reasoning acceptable.
- It
follows that also these complaints must be rejected as being
manifestly ill-founded within the meaning of Article 35 §§
3 and 4 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
applicants claimed EUR 22,074.31 in respect of pecuniary damage and
EUR 5,000 each in respect of non-pecuniary damage.
- The
Government noted that the pecuniary damages accrued, with exception
of the fines imposed on the applicants, had been paid by the
publishing company, which was not a party to the present case. As the
publishing company had not asked the applicants to pay their parts,
no actual pecuniary damage had accrued to them. As to the
non-pecuniary damage, the Government considered that the applicants'
claims were excessive as to quantum and that the award should
not exceed EUR 2,000 per applicant and EUR 8,000 in total.
- The
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage. Consequently, there is
justification for making an award to the applicants under that head.
Having regard to all the circumstances, the Court awards the
applicants jointly EUR 22,000 in compensation for pecuniary damage.
Moreover, the Court considers that the applicants must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards the
applicants EUR 2,000 each in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 12,490.31 for the costs and expenses
incurred before the domestic courts and EUR 6,000 for those incurred
before the Court.
- The
Government contested these claims. The Government maintained that no
specification related to the costs and expenses, as required by Rule
60 of the Rules of Court, had been submitted as the hours used or the
total cost for each measure performed were not specified. The claims
also included postage, telephone and copying costs which were already
included in the counsel's fee. In any event, the total amount of
compensation for costs and expenses for all applicants should not
exceed EUR 3,500 (inclusive of value-added tax).
- 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 applicants jointly the global
sum of EUR 5,000 (including any value-added tax) under this head.
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 under Articles 7 and 10
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there has been no violation of
Article 7 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, 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
22,000 (twenty two thousand euros) to the applicants jointly, plus
any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) to each of the applicants, plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR
5,000 (five thousand euros) to the applicants jointly, plus any tax
that may be chargeable to them, 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
