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FOURTH
SECTION
CASE OF SOILA v. FINLAND
(Application
no. 6806/06)
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 Soila 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. 6806/06) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Joni Jarno Mikael Soila
(“the applicant”), on 15 February 2006.
- The
applicant was represented by Mr Antti Sorjonen, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that his right to freedom of
expression had been violated, and that he had not had a fair hearing
as the District Court and the Appeal Court had not reasoned their
judgments sufficiently and he had not been given a possibility to
submit additional comments when the Appeal Court had decided not to
hold an oral hearing.
- On
4 April 2008 the President of the Fourth Section decided to
communicate the complaints concerning the lack of reasoning, the lack
of an oral hearing and the freedom of expression, as well as ex
officio 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
applicant was born in 1973 and lives in Helsinki. He was a journalist
on the nationwide magazine 7 päivää.
- 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. Following 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 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
6 February 1997 7 päivää magazine
published two articles written by the applicant about A. and B. The
first article was entitled “A. collects his female friend
every day from work, the relationship continues” and it
concerned A.'s and B.'s relationship. B.'s conviction as well as her
workplace were mentioned as background information but the major part
of the article concerned the journalist's eyewitness statements about
how A. and B. spent their free time. The caption of the article
stated that “A.'s female friend B. visits his home daily”.
Also, several pictures of B. were published. The second article was
entitled “The police laughed at the ex-national conciliator,
A. arrested the journalists”. It was about A. and his
behaviour in certain encounters with the media, and B.'s name was
mentioned only in passing. The caption of the article stated that “A.
requested executive assistance from the police in order to take his
female friend secretly to his home”. Prior to these
articles, B.'s identity had been revealed and her picture had been
published in the media.
- In
the spring of 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
applicant, claiming that the articles published in 7 päivää
had invaded B.'s privacy.
- On
28 November 2001 the public prosecutor brought charges under Chapter
27, section 3(a), paragraph 2, of the Penal Code against the
applicant as well as the editor-in-chief (see Jokitaipale and
others v. Finland, no. 43349/05, 6 April 2010), in Vantaa
District Court. The charges brought against the applicant clearly
indicated that the applicant was charged only for having written the
articles in question. He was not charged for having been responsible
for the headings, pictures or in which part of the magazine the
articles were to be published.
- B.
concurred with the charges brought by the public prosecutor. She
pursued a compensation claim jointly and severally against the
applicant, the editor-in-chief and the publishing company, which was
joined to the criminal charges. Charges brought against the other
journalists of the magazine as well as the editor-in-chief were
examined in the same proceedings.
- 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
except for the applicable legal provisions, the conclusions and the
summary of the case. Additionally, B.'s identity was not to be
revealed in the public parts of the case file. As to the merits of
the case, the court accepted the statement of facts indicated in the
charges and noted that the applicant was not responsible for the
headings, pictures or in which part of the magazine the articles were
to be published. It sentenced the applicant to pay twenty day-fines,
amounting to 840 euros (EUR), for invasion of B.'s private life.
Moreover, the applicant was ordered to pay B., jointly with the other
parties to the case, EUR 4,000 plus interest for non-pecuniary damage
as well as her costs and expenses.
- 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. 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. Nor was B.'s conviction of a kind
that would justify revealing her identity. The Penal Code provision
in question did not require that intent to harm be shown but 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 applicant, therefore, had had no right to reveal facts
relating to B.'s private life.
- By
letter dated 9 December 2002 the applicant appealed to the Helsinki
Appeal Court, requesting, inter alia, that an oral hearing be
held and if not, that he be given a possibility to submit additional
comments. Moreover, he claimed that the disclosure of a convicted
person's name could not be considered as falling within the scope of
private life, and that the District Court judge had had a fixed idea
about the outcome of the case.
- On
12 October 2004 the Appeal Court, without holding an oral hearing,
upheld the District Court judgment. The court balanced the 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 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 would have 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 applicant applied for leave to
appeal to the Supreme Court, reiterating the grounds already
presented before the Appeal Court. Moreover, he claimed that the
Appeal Court had not reasoned its judgment sufficiently, and that the
judgment was written in a manner suggesting collective criminal
liability. This conflicted with the presumption of innocence.
Further, he claimed that the restrictions on freedom of expression
were neither necessary nor justified in this case.
- On
15 August 2005 the Supreme Court refused the applicant leave to
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic legislation and practice 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 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the District Court and the Appeal Court had not reasoned their
judgments sufficiently as the judgments were written in a manner
which suggested collective criminal liability. He claimed under
Article 6 § 3 (b) of the Convention that he had not been given a
possibility to submit additional comments when the Appeal Court had
decided not to hold an oral hearing.
- Article
6 § 1 reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- Article
6 § 3 (b) reads as follows:
“Everyone charged with a criminal offence has the
following minimum rights:
....
(b) to have adequate time and facilities for
the preparation of his defence;
.....”
- The
Government contested these arguments.
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
domestic remedies available to him as he had not invoked in his
application for leave to appeal or in the appeal to the Supreme Court
the fact that no possibility to submit additional comments was given
to him when the Appeal Court had decided not to hold an oral hearing.
Accordingly, this complaint should be declared inadmissible for
non-exhaustion of domestic remedies under Article 35 § 1 and 4
of the Convention.
- The
applicant contested the Government's arguments. He claimed that he
had expressly stated in his application to the Supreme Court that the
Appeal Court had violated his right to a fair trial under Article 6
when it had convicted him without even mentioning his name in the
judgment. It had not been advisable for the applicant to request
leave to appeal on the basis of a lack of a possibility to submit
additional comments in the Appeal Court.
- The
Court reiterates that although the rule requiring the exhaustion of
domestic remedies must be applied with some flexibility, it does not
require merely that applications should have been made to the
appropriate domestic courts and that use should be made of remedies
designed to challenge decisions already given. It normally requires
also that the complaints intended to be made subsequently to
Strasbourg should have been made to those domestic courts, at least
in substance and in compliance with the formal requirements of
domestic law (see Cardot v. France, 19 March 1991, §
34, Series A no. 200). By not drawing the Supreme Court's attention
to the procedural fault allegedly committed by the Appeal Court the
applicant cannot be said to have made, even in substance, to the
highest national court the complaint which he is making now. The
Court notes that reliance before the Supreme Court on the procedural
fault now alleged, cannot be regarded as having been devoid of any
real chance of success in view of the facts that the Convention is in
force in Finland as domestic law and that a procedural error is one
of the grounds on the basis of which leave to appeal can be granted.
- It
follows that the applicant has not complied with the condition as to
the exhaustion of domestic remedies with respect to the complaint
concerning a lack of a possibility to submit additional comments and
that this part of his application must therefore be declared
inadmissible under Articles 35 § 1 and 4 of the Convention.
- The
Court notes that the complaint concerning the lack of reasoning of
the District Court's and the Appeal Court's judgments 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
applicant claimed that the national judgments had made no difference
between him and the other defendants in the case. The national courts
had reached criminal conclusions on a collective basis without openly
stating, at least expressis verbis, what had been each
defendant's part in the published articles. There had been no
assessment of pro et contra in the judgments. As the
applicant's individual role in the published articles had not been
separated from the other persons' roles, it had been practically
impossible for him and for everyone else to know what exactly had
been the applicant's own part in the journalistic process which
normally comprised many actors. It was very possible that B.'s
privacy had mainly been infringed due to the pictures and the lay-out
of the articles, issues in which the applicant had had no role. The
Appeal Court had failed to reply to the applicant's arguments in his
appeal and the judgment was based solely on very general reasoning.
- The
Government maintained that both the District Court and the Appeal
Court had thoroughly reasoned in their judgments the fulfilment of
the essential elements of the offence. The judicial assessment had
concerned all the defendants, including the applicant, as their
conduct had fulfilled the same elements of an offence. The defendants
had not been deemed to have collective criminal liability but their
conduct described in the charges had been subject to the same legal
rules. The reasoning in the District Court's and the Appeal Court's
judgments had not lacked individualisation and had not been defective
in respect of the applicant's own culpability.
- The
Court reiterates that, according to its established case-law
reflecting the need for the effective administration of justice,
courts and tribunals should adequately state the reasons on which
they base their decisions. The extent to which this obligation
applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case (see García
Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 I.).
Although Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as requiring a detailed answer to
every argument. Nor is the European Court called upon to examine
whether arguments are adequately met (see Van de Hurk v. the
Netherlands, 19 April 1994, § 61, Series A no.
288).
- The
Court notes that the charges brought against the applicant clearly
indicated that the applicant was charged only for having written the
articles in question. The District Court accepted the statement of
facts indicated in the charges and noted that the applicant was not
responsible for the headings, pictures or in which part of the
magazine the articles were to be published. It concluded that the
applicant was found guilty of the offence indicated in the charges.
The Appeal Court confirmed the District Court's finding by adding
more detailed reasoning.
- Having
in mind the above, the Court considers that the criminal liability of
the applicant had been clearly established and his part in the
journalistic process could be separated from that of the others. The
District Court's and the Appeal Court's judgments were thus
sufficiently reasoned in this respect.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE
CONVENTION
- The
applicant complained under Article 10 of the Convention, inter
alia, that there had been a lack of intent, which was a necessary
requirement for any criminal conviction. Even though the applicant
has not lodged any complaint specifically under Article 7 of the
Convention, the Court considered that his above-mentioned complaint
under Article 10 fell to be examined also under Article 7 and for
that reason communicated the complaint from the standpoint of the
legality principle.
- The
applicant also complained under Article 10 of the Convention that the
restrictions on his right to freedom of expression 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 actively participated in the incident of 4 December
1996. A conviction was public information that could not fall within
the scope of private life. The public had a right to know about
issues of public interest. The applicant had only written the
articles, and he had had no say in the manner in which they had been
published. No intent had been shown. Moreover, the information in the
articles had been in every respect correct. The courts had failed to
strike a proper balance between the protection of private life and
freedom of expression in the manner required by the Convention.
- 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 applicant
- The
applicant maintained that the incident in question was of great
public interest and therefore it was not a criminal act to publish
B.'s name. The case was exceptional and had had dramatic effects in
Finnish society and politics, and therefore the balancing of the two
fundamental rights should have been done in accordance with the
Court's case law and not following the Supreme Court's earlier
precedent. The matter could not be solved without any reference to
the freedom of media. When assessing the case in the light of the
freedom of media, it was clear that the balancing of various rights
should have been in favour of freedom of expression. Media played a
great role in a democratic society and its independence was to be
protected as much as possible. This aspect was completely swept aside
in all national judgments in criminal proceedings in Finland.
Therefore it was essential that the Court gave its opinion on whether
the outcome of the present case had been compatible with the
Convention and the Court's case law.
- The
applicant further argued that there had been a lack of intent, which
was a necessary requirement for any criminal conviction. The facts in
the articles had been fully correct and B.'s name had been mentioned
only due to her own unlawful action for which she had already been
punished in a public trial. B.'s identity had already been disclosed
in the media before the publication of the articles in question. It
was not possible in the hectic journalistic environment to start
seeking legal advice prior to publication of an article. If such a
duty did exist, it could be placed on the editor alone. B.'s
conviction alone had never been the subject of any public interest
but the situation as a whole, including the incident of 4 December
1996, was the subject of public interest.
(b) The Government
- The
Government agreed that the conviction of the applicant and the
obligation to pay damages and costs had amounted to an interference
with his right to freedom of expression.
- As
to the requirement that measures be “prescribed by law”
and in compliance with Article 10, 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 article in question,
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. Accordingly, the
intent required by the provision in question had been fulfilled
within the meaning given to it through interpretation of the Penal
Code.
44. 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 applicant must have been aware of the regulations
concerning the freedom of expression. In any event, he could have
sought legal advice before publishing the articles. Accordingly, 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. Notwithstanding
the incident of 4 December 1996 and B.'s subsequent sentence,
the information published by the applicant had been of such a nature
that it had been covered by the protection of B.'s private life. The
reporting of the events could have been done without mentioning B. by
name. The press could not overstep certain boundaries, particularly
as regards the reputation and the rights of others. 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 applicant's conviction, the
fine imposed on him and the award of damages constituted an
interference with his 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
applicant argued that there had been a lack of intent, which was a
necessary requirement for any criminal conviction. The Government
argued that the intent required by
the provision in question had been fulfilled within the meaning given
to it through interpretation of the Penal Code.
- 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 to whether the intent requirement was
fulfilled.
- 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.
- In
addition, the Court reiterates that it is for the national courts to
interpret the national law. In the present case, the national courts
found in their judgments that the Penal Code provision in question
did not require that intent to harm be shown but that 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. As this undoubtedly was the case, the Court has no reason
to question the national courts finding in this respect.
- 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 applicant and the context in
which they were made. 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 applicant
was convicted on the basis of the remarks made in two articles in his
capacity as a journalist.
- The
Court observes at the outset that the first article, which was
entitled “A. collects his female friend every day from work,
the relationship continues”, concerned A. and B.'s
relationship. B.' s conviction as well as her workplace were
mentioned as background information but the article focused on the
journalist's eyewitness statements about how A. and B. had spent
their free time. Also, several pictures of B. were published. The
second article was entitled “The police laughed at the
ex-national conciliator, A. arrested the journalists”. It
was about A. and his behaviour in certain encounters with the media,
and B.'s name was mentioned only in passing.
- The
Court notes that no allegation has been made of factual
misrepresentation or bad faith on the part of the applicant. 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 subject to 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 applicant was backlit by
these considerations and they cannot be discounted when assessing the
proportionality of the interference with his Article 10 rights.
- The
Court further observes that the information in the two articles
mainly focused on A. and B.'s relationship and on A.'s encounters
with the media. 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 disclosing of B.'s identity in the
impugned 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. Even though the
articles in question focused on issues other than the incident, the
Court considers that these issues stemmed from it and that there was
therefore a continuing element of public interest involved also in
respect of B. In this connection, the Court notes that, when
assessing the cases stemming from the incident of 4 December
1996, the national authorities and the national courts also 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 (see Tuomela and others v. Finland, 25711/04, 6
April 2010; Flinkkilä and others v. Finland, cited above;
and Jokitaipale and others v. Finland, cited above). 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
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 captions of the articles (“A.'s female friend B. visits
his home daily”; A. requested executive assistance from the
police in order to take his female friend secretly to his home”).
- 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, including in a programme broadcast nationwide on
prime-time television (see Flinkkilä and others v. Finland,
cited above, §§ 8 and 36 ). 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 applicant. It notes that the applicant was convicted
under criminal law and observes that he was ordered to pay twenty
day-fines, amounting to EUR 840. In addition, he was ordered to pay
B., jointly with the other defendants in the case, EUR 4,000 plus
interest for non-pecuniary damage as well as her costs and expenses.
The severity of the sentence and the amount of compensation cannot as
such be regarded as disproportionate, given that the maximum
compensation afforded to victims of serious violence which was
approximately FIM 100,000 (EUR 17,000) at the time (see
Flinkkilä and others v. Finland, cited above, § 23).
- However,
it should 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 in the
amount 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 stemmed from the same facts (see cases Tuomela and
others v. Finland, cited above; Flinkkilä and others v.
Finland, cited above; Jokitaipale and others v. Finland,
cited above; and Iltalehti and Karhuvaara, no. 6372/06, 6
April 2010).
- The
Court considers that such 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 was
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 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.
III. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 2 of the Convention
that the presumption of innocence had been violated in his case as
the District Court judge had already formed a view at the beginning
of the proceedings as to how he would decide the case.
- The
Court notes that the applicant raised this issue before the Appeal
Court, which examined it, even though it did not refer to it in its
judgment. Considering that the applicant has not further
substantiated his claim, the Court finds 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government considered the applicant's claim for non-pecuniary damage
excessive as to quantum. Were the Court to find a violation of
Articles 6, 7 and 10 of the Convention, the award should not exceed
EUR 4,000 in total.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the applicant EUR
2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 5,052.06 for the costs and expenses
incurred before the domestic courts as well as before the Court.
- The
Government contested these claims. The claims included postage,
telephone and copying costs which were already included in counsel's
fee. In any event, the total amount of compensation for costs and
expenses for the applicant should not exceed EUR 3,000
(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 applicant the global sum
of EUR 3,000 (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 6 § 1
(concerning the lack of reasons), 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 6 § 1 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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
him, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
