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FOURTH
SECTION
CASE OF JOKITAIPALE AND OTHERS v. FINLAND
(Application
no. 43349/05)
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 Jokitaipale 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. 43349/05) 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 three Finnish nationals, Ms Eeva Helena
Jokitaipale, Mr Timo Veikko Kiiski and Mr Mikko Juhani Sokero and a
Finnish publishing company, Aller Julkaisut Oy (“the
applicants”), on 2 December 2005.
- 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.
Moreover, the total length of the proceedings in their case had been
incompatible with the “reasonable time” requirement.
- On
4 April 2008 the President of the Fourth Section decided to
communicate the complaints concerning the length of proceedings, the
legality principle and the 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1951, 1963 and 1969 respectively and live in
Helsinki. The applicant company is based in Helsinki. The first
applicant is the editor-in-chief and the second and third applicants
are journalists in the nationwide 7 päivää
magazine which is published by the applicant company.
- 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. 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 was discontinued 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
23 January, 6 February and 13 March 1997 the 7 päivää
magazine published in total four articles about A. and B. Prior to
these articles, the identity of B. had been revealed and her picture
had been published in the media.
- The
first article published on 23 January 1997 was entitled “B.
broke up A.'s marriage” and it concerned A.'s marriage and
his relationship with B. The article, which covered a whole double
page spread, mainly concerned A.'s marriage and it included an
interview with his wife. It also mentioned B. by name as well as her
age, the name of her workplace, her family relationships and her
relationship with A. Moreover, the changes in her career and
assignments after the incident of 4 December 1996 which led
to the arrest of A., the incident itself as well as the subsequent
criminal proceedings and convictions of A. and B. were mentioned in
the article. The caption of the article stated that “A.'s
marital problems began eight years ago when B. entered his life”.
The article also included pictures of A. and B. as well as of A.'s
wife and children. Linked to this article there was, in the same
issue, a news clip which was entitled “B. danced samba
without A.”. It contained only a few lines but B.'s name,
together with her picture, and the fact that she was convicted for
having assaulted A.'s son were mentioned in the clip. Both items were
written by the third applicant and approved by the first applicant.
A. and B.'s pictures and statements concerning them were also
published on the cover of the magazine.
- In
the next two articles published on 6 February 1997 B.'s name, career,
family relationships and her relationship with A. were mentioned
together with pictures of her. The articles were written by a
journalist, who has lodged a separate application with the Court (see
Soila v. Finland, no. 6806/06, 6 April 2010), and
approved by the first applicant.
- The
fourth article, published on 13 March 1997, was entitled “B.
divorces her husband”. It mentioned, together with pictures
of A. and B., her name, age, assignments, family relationships and
her relationship with A. The article described also the incident of 4
December 1996, the subsequent criminal proceedings against A. and B.,
and their convictions. The caption of the article stated that
“A.'s female friend B. lodged a divorce application with a
court”. The article was written by the second applicant and
approved by the first applicant. A. and B.'s pictures and statements
concerning them were also published on the cover of the magazine.
- The
first applicant also approved the publishing of all headings and
photographs of B.
- On
28 March 1997 A. and B. requested that criminal investigations be
conducted against journalists who had written about the incident of
4 December 1996 and the circumstances surrounding it. On an
unspecified date they made such a request with respect to the
applicants, claiming that the articles published in 7 päivää
had invaded B.'s privacy.
- The
first applicant was questioned as a suspect on 18 June 1997, the
second applicant on 10 July 1997 and the third applicant on
15 August 1997. The applicants had already, before their
questioning, drafted written submissions concerning the alleged
offences dated as follows: the first applicant on 17 June 1997 and
the second applicant on 24 June 1997. The written submission of
the third applicant was not dated. The pre-trial investigation was
concluded on 25 November 1998 and the matter was transferred for the
consideration of the public prosecutor.
- On
17 August 1999 the public prosecutor decided not to bring charges
against the applicants as, according to her, there was no indication
of any crime.
- By
letter dated 6 March 2000 B. complained to the Prosecutor-General
(valtakunnansyyttäjä, högsta åklagaren)
about the decisions not to prosecute and asked him to reconsider the
cases. On 27 November 2001, 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
28 November 2001 the public prosecutor, by order of the Deputy
Prosecutor-General, brought charges against the first, second and
third applicants in Vantaa District Court. At the same time charges
were brought also against another journalist (see Soila v.
Finland, cited above). B. concurred with the charges brought by
the public prosecutor. She pursued a compensation claim against all
the applicants, together with the other journalist, which was joined
to the criminal charges.
- On
8 November 2002 the court, after having held an oral hearing, first
decided to declare all parts of the case file secret for ten years,
apart from the applicable legal provisions, the conclusions and the
summary of the case. In addition, it ordered that the identity of B.
was not to be revealed in the public parts of the case file. As to
the merits of the case, the court sentenced the first applicant to
pay forty day-fines for invasion of private life and the second and
third applicants twenty day-fines, amounting to 4,080 euros (EUR),
EUR 960 and EUR 840 respectively. Moreover, the
first, the third and the fourth applicants were ordered to pay B.
jointly and severally EUR 8,000 plus interest, the first and the
fourth applicants, together with the other journalist were ordered to
pay B. jointly and severally EUR 4,000 plus interest and the first,
the second and the fourth applicants were ordered to pay B. jointly
and severally EUR 4,000 plus interest, as non-pecuniary damage.
The applicants, together with the other journalist, were
jointly ordered to pay B.'s costs and expenses. The applicants paid
in total EUR 39,494.95 in fines and compensation.
- The
District 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.'s position in society was not such 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. Nor was B.'s conviction of a kind
that justified revealing her identity. The Penal Code provision in
question did not require that intent to harm 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 photographs of her.
- By
letter dated 16 December 2002 the applicants appealed to the Helsinki
Appeal Court, claiming, inter alia, that they had not had a
fair trial, that the provision of the Penal Code in question did not
define with sufficient clarity which acts fell within its scope, and
that the disclosure of a convicted person's name could not be
considered as falling within the scope of private life.
- On
12 October 2004 the Appeal Court, without holding an oral hearing,
upheld the District Court judgment. The court balanced the right to
freedom of expression against the protection of private life in the
light of the Court's case-law. It found that, according to the
preparatory works and the national and the Court's case-law, 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 B. was not a public figure, and the fact
that she was a friend of such a person and had been involved in the
incident that subsequently led to A.'s dismissal from his post as
National Conciliator did not justify revealing her identity. Nor was
B.'s conviction of a kind that justified 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.
- By
letter dated 13 December 2004 the applicants applied for leave to
appeal to the Supreme Court, reiterating their claims presented to
the Appeal Court. Moreover they claimed that, in declaring that the
case file should remain secret, the Appeal Court had not given any
reasons which would constitute sufficient grounds for the measure,
that the length of the proceedings had exceeded a reasonable time,
and that the restrictions on freedom of expression were neither
necessary nor justified in this case.
- On
15 August 2005 the Supreme Court refused the applicants leave to
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under Chapter 3, section
1 of the Criminal Procedure Act (laki
oikeudenkäynnistä rikosasioissa, lag om rättegång
i brottmål,
Act no. 689/1997), a civil claim arising from the offence for
which a charge has been brought may be heard in
connection with the charge. If such a claim is lodged separately, the
provisions on civil procedure apply.
- The
relevant domestic legislation and practice concerning the legality
principle and the freedom of expression are outlined in the Court's
judgment in Flinkkilä and others v. Finland (no.
25576/04, §§ 19-44, 6 April 2010).
III. RELEVANT INTERNATIONAL MATERIALS
- The
relevant international materials are outlined in the Court's judgment
in Flinkkilä and others v. Finland (cited above, §§
45-47).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the total length of the proceedings in
their case had been incompatible with the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention,
which for its relevant parts 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 with respect to the first
applicant began on 17 June 1997 and with respect to the second
applicant on 24 June 1997 when they submitted their written
submissions concerning the alleged offences (see Corigliano v.
Italy, 10 December 1982, § 34, Series A no. 57). The period
to be taken into consideration with respect to the third applicant
began on 15 August 1997 when he was questioned for the first
time. As regards the compensation claims brought against the fourth
applicant, the Court notes that neither of the parties has specified
on which date these claims were brought and nor can this information
be found in the case file. The Court considers therefore that the
compensation claims must have been brought at the earliest on 28
November 2001 when the case became pending before the District Court.
The proceedings ended on 15 August 2005 when the Supreme
Court refused leave to appeal. The proceedings thus lasted with
respect to the first and the second applicants about eight years and
two months, with respect to the third applicant eight years, and with
respect to the fourth applicant over three years and eight months,
all for 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 applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II).
- The
applicants claimed that the length of the proceedings had been
excessive, in particular as the duration of the proceedings in such a
simple matter had exceeded eight years. It had taken eighteen months
for the Office of the Prosecutor-General to decide on charges and
that decision had finally been made three years after the pre-trial
investigation had been completed. It had taken almost one year and
ten months for the Appeal Court to examine the case although no oral
hearing had even been held.
- The
Government pointed out that the pre-trial investigation had been
conducted rapidly, as it had been completed already on 25 November
1998, but that the consideration of charges had been influenced by
the fact that similar cases had been pending before both the Appeal
Court and the Supreme Court. As the lower instances had rejected
similar charges, the Office of the Prosecutor-General had waited as
long as was reasonable for the Supreme Court's decision in the matter
but had decided finally to bring charges on 27 November 2001.
The case had been somewhat complex owing to the fact that it had been
connected to a larger set of cases. There had been reasonable grounds
to consider that it had been appropriate to forward all investigation
records related to the same set of issues for consideration of
charges at the same time. There had been no unnecessary delays in the
proceedings imputable to the authorities.
- 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, as
far as the first, second and third applicants are concerned, 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 criminal proceedings was
excessive and failed to meet the “reasonable time”
requirement. As concerns the fourth applicant, the Court considers
that length of the compensation proceedings was not excessive and
that the “reasonable time” requirement was thus met.
- There has accordingly been a violation of Article 6 §
1 in respect of the first, second and third applicants and no
violation in respect of the fourth applicant.
II. 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 would have been punishable as the provision had not defined
the scope of private life. Moreover, the conviction of B. could not
have fallen within the scope of private life as a conviction for
assault could never be a private issue, especially as B.'s case file
had not been declared secret. Furthermore, no intent had been shown.
- 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 pictures and the facts mentioned in the articles
had not fallen within the protection of private life. She had not
been an innocent bystander but had participated actively in the
incident of 4 December 1996. The public had a right to know
about issues of public interest and the information in the articles
had in every respect been correct. The restrictions imposed on the
applicants had been grossly disproportionate, especially in view of
their obligation to pay very considerable damages.
- 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 traditionally been 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 a
criminal offence 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 January and March 1997 the applicants could not have
been able to foresee 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. Moreover, B. had not been a
passive object of publicity but had participated actively in an
incident of public interest. The amount of sanctions imposed on the
applicants, including the fines, the compensation and the legal
costs, had been such that this 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 of 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 had also
separately mentioned a picture, and thus the provision had fulfilled
the clarity requirement. At the relevant time the provision had been
in force for 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 have reasonably been foreseen.
47. Moreover,
the Guidelines for Journalists and the practice of the Council for
Mass Media 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 was lawful. Under Finnish law the
fact that information was public did not automatically mean that it
could be published. Only persons convicted for aggravated offences
and sentenced to imprisonment did not enjoy any protection of
identity or private life.
- The
Government pointed out that being A.'s female friend had not as such
made her a person in a socially significant position whose right to
private life could be narrowed. 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
articles 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, are diverging 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
citizen 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
questions 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, 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, 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
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 contents
or refrained from disclosing B.'s identity. Moreover, the applicants,
who were professional journalists, could not claim to be ignorant of
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). Moreover, 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; 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;
outlined in Flinkkilä and others v. Finland, cited above,
§§ 45-46). 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 Flinkkilä and others v.
Finland, cited above, § 41).
- 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 a
matter 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 journalists or editor-in-chief.
- The
Court observes at the outset that the first article published on
23 January 1997, which was titled “B. broke up A.'s
marriage”, concerned A.'s marriage and his relationship
with B. The article, which covered a whole double page spread, mainly
concerned A.'s marriage, including also an interview with his wife.
Various details about B.'s private life were also mentioned (see
paragraph 8 above) as well as the incident of 4 December 1996 and the
subsequent criminal proceedings and convictions of A. and B. The
article also included pictures of A. and B. as well as of A.'s wife
and children. Linked to this article there was a news clip which was
entitled “B. danced samba without A.”. It
contained only a few lines but B.'s name, together with her picture,
and the fact that she had been convicted for having assaulted A.'s
son were mentioned in the clip. Moreover, A. and B.'s pictures and
statements concerning them were also published on the cover of the
magazine. The fourth article, published on 13 March 1997, which
was entitled “B. divorces her husband”, mentioned,
alongside pictures of A. and B., her name, age, assignments, family
relationships and her relationship with A. The article also described
the incident of 4 December 1996, the subsequent criminal proceedings
against A. and B., and their convictions. In addition, A. and B.'s
pictures and statements concerning them were also published on the
cover of the magazine.
- The
Court notes that no allegation has been made 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 was subject to 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
was 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 his and his wife's family life.
Even though several details of B.'s private life were mentioned, many
of which were presented in a gossip-like manner, 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 in question 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. Even though the
articles in question focused also on other issues than the incident,
the Court considers that there was a continuing element of public
interest involved also in respect of B. In this connection, the Court
also notes that the national authorities reached 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, 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 was on both A.
and B. The events were presented in a colourful manner to boost the
sales of the magazine, a fact that becomes apparent from the caption
of the articles (“A.'s marital problems began eight years
ago when B. entered his life”; “A.'s female friend B.
lodged a divorce application with a court”).
- The
Court, however, observes that, on the other hand, prior to the
publication of the articles, the incident of 4 December 1996 and its
immediate consequences had been widely publicised and discussed in
the media. 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 the first applicant
was ordered to pay forty day-fines and the second and third
applicants twenty day-fines, amounting to EUR 4,080, EUR 960 and
EUR 840 respectively. In addition, the first,
the third and the fourth applicants were ordered to pay B. jointly
and severally EUR 8,000 plus interest, the first and the fourth
applicants, together with the other journalist were ordered to pay B.
jointly and severally EUR 4,000 plus interest and the first, the
second and the fourth applicants were ordered to pay B. jointly and
severally EUR 4,000 plus interest, as non-pecuniary damage. 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 Flinkkilä and others v.
Finland, cited above, § 23).
- 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
Flinkkilä and others v. Finland, cited above, §§
33-34). The Court notes that B. had already been paid damages of
EUR 8,000 for the disclosure of her identity in the television
programme (see Flinkkilä and others v. Finland, cited
above, § 36). Similar damages had been ordered to be paid to her
also in respect of other articles published in other magazines which
all arose from the same facts (see cases Tuomela and others v.
Finland, no. 25711/04, 6 April 2010; Flinkkilä and
others v. Finland, cited above; Soila v. Finland, cited
above; 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
domestic courts, 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 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 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.
III. REMAINDER OF THE APPLICATION
- The
applicants also complained under Article 6 § 1 of the Convention
that the District Court and the Appeal Court had not reasoned their
judgments sufficiently, especially as far as the decision declaring
the case file secret was concerned. They claimed that the name and
photograph of a convicted person were not facts that fell within the
scope of private life and that a case could not be declared secret on
that basis alone. Moreover, the applicants complained that the Appeal
Court had violated the principle of equality of arms as the
applicants, in contrast to the public prosecutor and B, had had no
access to, nor any possibility to comment on, the Supreme Court's
case file in an earlier, related case which had been declared secret
and which was quoted in the Appeal Court judgment.
- As
to the earlier Supreme Court's judgment, the Court notes that it had
been mentioned in the District Court's judgment and that the
applicants had been able to comment on it in their appeal to the
Appeal Court. The judgment 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 District Court's and the
Appeal Court's judgments in the present case is quite extensive. As
far as the reasoning concerns the restrictions on freedom of
expression, the courts stated in very detailed manner 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 neither the District Court nor the Appeal Court reasoned in any
way in their judgments why they considered it necessary to declare
the case file secret. However, the Court reiterates that it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I.).
The Court notes that the applicants had full access to the case file
together with a reasoned judgment and were not impaired in the
exercise of their appeal rights in the absence of any repercussions
on fairness requirements. The Court considers that declaring the case
file secret, and thereby also the lack of reasoning, had impact
neither on the applicants' position as parties to the case nor on the
actual fairness of the proceedings. The Court therefore finds that
there is no indication of any violation in this respect.
- It
follows that these complaints also must be rejected as being
manifestly ill-founded within the meaning of 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
- In
respect of pecuniary damage, the first, second and third applicants
claimed reimbursement of the fines they had to pay, that is, EUR
4,080, EUR 960 and EUR 840 respectively. All applicants also claimed
reimbursement of the compensation they had to paid to B. as
non-pecuniary damage (the first, third and
fourth applicants jointly and severally EUR 8,000 plus interest;
the first and the fourth applicants, together with the other
journalist, jointly and severally EUR 4,000 plus interest; and the
first, second and fourth applicants jointly and severally EUR 4,000
plus interest) as well as her legal costs EUR 5,961 plus interest.
They claimed a total amount of EUR 42,098.69 in respect of
pecuniary damage. The first, second and
third applicants also claimed EUR 5,000 each in respect of
non-pecuniary damage, that is, EUR 15,000 in total.
- The
Government pointed out that, as concerned assessment of the pecuniary
damage to be awarded, the compensation of EUR
4,000 plus interest paid by the first and
the fourth applicants as well as the legal costs, EUR 5,761 instead
of EUR 5,961, had been ordered to be paid jointly and severally with
the other journalist. The Government left it to the Court's
discretion whether the applicants have submitted the necessary
documents to support their claims in this respect. As to the
non-pecuniary damage, the Government considered that the first,
second and third applicants' claims were excessive as to quantum
and that the award should not exceed EUR 2,000 per applicant and
EUR 6,000 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 39,000 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
first, second and third applicants EUR 5,000 each in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,000 for the costs and expenses
incurred before the domestic courts and EUR 3,000 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 and that no award should
therefore be made in this respect. 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. The Court notes that no documentation, as
required by Rule 60 of the Rules of Court, has been submitted
within the time allowed. The Court rejects therefore the claims for
costs and expenses incurred in the domestic proceedings as well as
for those incurred before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints under
Articles 6 § 1 (concerning the length of the
proceedings), 7 and 10 of the Convention admissible and the remainder
of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention with respect to the
first, second and third applicants and no violation with respect to
the fourth applicant;
- Holds by six votes to one that there has been a
violation of Article 10 of the Convention;
- Holds unanimously that there has been no
violation of Article 7 of the Convention;
- Holds unanimously
(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
39,000 (thirty nine thousand euros) to the applicants jointly, plus
any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros) to the first, second and third applicants
each, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 unanimously 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
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Garlicki is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE GARLICKI
I am
not convinced that there has been a violation of Article 10 in this
case. Unlike in the remaining Finnish cases decided today, in which
press publications focused primarily upon Mr A. and information about
Ms B. was presented as a background to A.'s story, in the Jokitaipale
and Others case at least two articles (“B. danced samba without
A.” and “B. divorces her husband”) dealt primarily
with the private life of Ms B.
It is
clear that Mr A. was a politician (a public figure) and that the
public may have had a legitimate interest in being informed about
facts concerning his integrity and lifestyle. Imparting such
information belongs to the function the press fulfils in a democratic
society.
However,
Ms B. was a private person and her entry into the realm of public
matters was due only to her relationship with A., which led to the
unfortunate incident of 4 December 1996. Since our “public
figure” doctrine entitles the press to invade the private life
of politicians, the press was allowed to provide complete information
about those facts and had no alternative but to involve B. as well.
So long as information concerning B. constituted an integral element
of A.'s story, she could not invoke Article 8 to protect her privacy.
She knew that A. was a public figure and she must have been aware
that their relationship might – sooner or later – arouse
the interest of the press.
But
all this did not transform Ms B. into a separate (autonomous) public
figure. The application of the “public figure” doctrine
to her private life was therefore limited to the facts and events
concerning her relationship with A. The very fact that she had an
affair with A. could not result in total forfeiture of her privacy.
B.'s arrest and conviction, while deserving press coverage, were at
the same time not sufficient to deprive her of her status as a
private person (see Sciacca v. Italy, no. 50774/99, § 29, ECHR
2005 I).
I
agree with the judgment (see paragraph 72) that as long as the
information about B. was only limited to facts which were inherently
related to A.'s story, she could not rely on protection of privacy.
But the concept of “inherently related” information
cannot give carte blanche to the press. Publication of articles
(clips) whose titles mentioned B. exclusively and which focused on
facts concerning her divorce or her samba dancing (without A. being
present) cannot, in my opinion, be regarded as “inherently
related” to Mr A. In consequence, they cannot be regarded as
sufficiently covered either by the “public figure”
doctrine or by the concept of “inherently related”
information.
Therefore,
I am of the opinion that the Finnish courts were right in deciding
that those publications were of a kind to which the protection of
private life was applicable in the first place.
