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CASE OF ILTALEHTI AND KARHUVAARA v. FINLAND
6 April 2010
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
In the case of Iltalehti and
Karhuvaara v. Finland,
European Court of Human Rights (Fourth Section), sitting as a Chamber
deliberated in private on 16 March 2010,
the following judgment, which was adopted on that date:
case originated in an application (no. 6372/06) 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 publishing company,
Kustannusosakeyhtiö Iltalehti and a Finnish national, Mr Pekka
Edwin Johannes Karhuvaara (“the applicants”), on 9
applicants were represented by Mr Risto Ryti, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
applicants alleged, in particular, that their right to freedom of
expression had been violated and that the total length of the
proceedings in their case had been incompatible with the “reasonable
4 April 2008 the President of the Fourth Section decided to
communicate the complaints concerning the length of proceedings and
the freedom of expression (only in respect of the applicant company)
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
I. THE CIRCUMSTANCES OF THE CASE
applicant company is based in Helsinki. The second applicant was born
in 1954 and lives in Helsinki. The applicant company publishes a
nationwide newspaper called Iltalehti and the second applicant
is the editor-in-chief of that newspaper.
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 this 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
17 January 1997, one day after the Helsinki District Court judgment,
the Iltalehti newspaper published an article about A. and B.
with a title “A. defends fiercely his post”. The
article focused mainly on A.'s conviction but in the caption to B.'s
picture, her name, conviction and the fact that she was A.'s female
friend were mentioned. Prior to this article, the identity of B. had
been revealed at least in a Finnish magazine on 7 January 1997
(see Tuomela and others v. Finland, no. 25711/04, 6 April
the spring of 1997 A. and B. requested that criminal investigations
be conducted against journalists who had written about the incident
on 4 December 1996 and the circumstances surrounding it. On an
unspecified date they made such a request with respect to the second
applicant, claiming that the article published in Iltalehti
had invaded B.'s privacy. Investigations started in respect of the
second applicant on 20 April 1997.
14 March 2000 the public prosecutor brought charges under chapter 27,
section 3(a) of the Penal Code against the second applicant in Vantaa
District Court. B. concurred with the charges brought by the public
prosecutor and pursued a compensation claim against both applicants,
which was joined to the criminal charges. The applicant company was
summoned on 10 April 2000.
8 November 2002 the court, after having held an oral hearing on
4 November 2002, 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, 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 second applicant
to pay twenty day-fines, amounting to 2,040 euros (EUR), for
invasion of B.'s private life. Moreover, the applicants were jointly
ordered to pay B. EUR 10,000 plus interest for non-pecuniary damage
as well as her costs and expenses.
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
A.'s dismissal 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 applicants, therefore, had
had no right to reveal B.'s name or to publish her picture. As to the
intent, the District Court found that invasion of private life was
punishable only if intent could be shown. As the second applicant had
not prevented the invasion of B.'s private life, this omission
fulfilled the intent criteria.
letter dated 9 December 2002 the applicants appealed to the Helsinki
Appeal Court, claiming, inter alia, that the provision of the
Penal Code in question did not define with sufficient clarity which
acts fell within its scope, and that a disclosure of a convicted
person's name could not be considered as falling within the scope of
private life. Moreover, the lack of evidence was used to the
detriment of the second applicant.
12 October 2004 the Appeal Court, without holding an oral hearing,
partly 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 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.
However, since the convictions of A. and B. were closely linked in
this case, B.'s name and conviction could lawfully have been
mentioned. Nevertheless, the publishing of a big picture of B. was
not necessary and therefore invaded her privacy. As to the intent,
the omissions of the second applicant could not be regarded as
proving his intent to invade B.'s privacy and, consequently, the
charges against him were dismissed. He was also exonerated from
paying B. non-pecuniary damages as well as her costs and expenses.
The non-pecuniary damages payable by the applicant company were
lowered to EUR 5,000. In total the applicant company paid
EUR 14,374.47 as compensation.
letter dated 13 December 2004 the applicant company applied for leave
to appeal to the Supreme Court, reiterating the grounds already
presented before the Appeal Court. Moreover, it claimed that, in
declaring that the case file was to 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.
15 August 2005 the Supreme Court refused the applicant company leave
II. RELEVANT DOMESTIC LAW AND PRACTICE
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
relevant international materials are outlined in the Court's judgment
in Flinkkilä and others v. Finland (cited above, §§
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
applicant company complained that the total length of the proceedings
in its 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 ...”
Government contested that argument.
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.
period to be taken into consideration with respect to the applicant
company began on 10 April 2000 when it was summoned and ended on 15
August 2005 when the Supreme Court refused leave to appeal. The
proceedings thus lasted five years and four months for three levels
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 and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
applicant company argued that there had been no justifiable grounds
for the proceedings to last such an unreasonably long time. The case
had not been complex and the facts had been undisputed. The only
practical problem had been the judicial assessment which did not
require a long handling period. The District Court had been able to
decide the case within four days after the oral hearing. The District
Court had adjourned the case pending the outcome of another case
before the Supreme Court. There had been no grounds to wait for the
Supreme Court's judgment.
Government maintained that there had been nothing exceptional in the
applicant company's or other parties' conduct during the proceedings.
At the beginning of the proceedings the District Court had waited for
the precedent case of KKO 2002:55 to be delivered by the
Supreme Court, which had been justified as the precedent largely
concerned the same matter as the present proceedings. The case had
been somewhat complex owing to the fact that it was connected to a
larger set of issues. The Government argued that, taking into account
the above-mentioned facts, there had been no unnecessary delays in
Court notes that even though the applicant company was summoned on 10
April 2000, the District Court held an oral hearing only on 4
November 2002 and delivered its judgment four days later. The
proceedings before the District Court lasted thus almost two years
and seven months. Apart from the delay caused by waiting for the
Supreme Court's precedent, the Court sees no other reason to
criticise the handling of the case by the District Court. The Appeal
Court and the Supreme Court proceedings were expeditious, lasting one
year and ten months and some eight months respectively. The Court
finds that, overall, the proceedings were conducted speedily and that
there were no unexplained delays in the proceedings.
regard to all the circumstances of the case, the Court concludes that
the total length of the proceedings was not unreasonable.
there has been no violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
applicant company complained under Article 10 of the Convention that
the restrictions on its right to freedom of expression in its case
had not been prescribed by law as the Penal Code provision applied
had not defined adequately the scope of private life. Nor had the
restrictions been necessary in a democratic society for the
protection of the reputation or rights of others. B. 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, especially since the case had been very newsworthy.
Moreover, the information in the articles had in every respect been
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.”
Government contested these arguments.
- 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.
1. The parties' submissions
(a) The applicant company
to the requirement that measures be “prescribed by law”,
the applicant company maintained that it could not reasonably have
been expected to anticipate at the time of publication of the article
that the publishing of B.'s name and picture would be punishable
under Finnish law. The decisions of KKO 1980 II 99 and KKO
1980 II 123 did not concern measures taken by the press and had
thus no connection to the present case. Prior to the publishing of
the article in question, the Supreme Court had not given one single
decision in which truthful publication of an offender's name would
have been considered as a crime. The later decisions by the Supreme
Court had had no significance in this case as these decisions had not
existed at the time of the publishing of the article. The statements
made by the Council for Mass Media or the Guidelines for Journalist
had had no significance in the assessment of penal responsibility.
to whether the interference was “necessary in a democratic
society”, the applicant company pointed out that the state's
margin of appreciation was subject to the Court's final ruling in the
matter. The Government had not commented at all on why it was
considered necessary to restrict freedom of speech in this case. It
was undisputed that B. had been actively involved in an important
news event which had eventually resulted in the resignation of the
National Conciliator, that B. had been found guilty of a crime due to
her active participation, that the applicant company had published
B.'s picture and had stated in the caption that B. had been sentenced
for assault, and that the applicant company had been sentenced to pay
damages for the publication of the picture and the caption only. In
publishing B.'s picture and the caption, the applicant company had
conducted its task of imparting information in an utterly sincere
(b) The Government
Government agreed that the obligation of the applicant company to pay
damages and costs had amounted to an interference with its right to
freedom of expression.
to the requirement that measures be “prescribed by law”,
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. Liability
therefore could reasonably have been foreseen.
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 company must have been aware of the
regulations concerning the freedom of expression. In any event, it
could have sought legal advice before publishing the article,
especially as the date of the oral hearing in A.'s and B.'s case was
known well in advance. Accordingly, the interference had been
“prescribed by law” as required by Article 10 § 2 of
Government maintained that the legitimate aim had been to protect the
private life of B., 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.
Government pointed out that being the female friend of A. 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 company 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 or including her picture. 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
1. Whether there was an interference
Court agrees with the parties that the obligation of the applicant
company to pay damages and costs constituted an interference with its
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
to whether the interference was “prescribed by law”, the
applicant company argued that, at the time of the publication of the
article in question, the citing of a convicted person's name and
publication of her picture in a newspaper had not been an offence in
Finland and that it had not therefore been able to foresee that
criminal sanctions could be imposed on it for having published B.'s
name and picture. 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.
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter
27, section 3(a), of the Penal Code. The parties'
views, however, diverge as far as the foreseeability of the said
provision is concerned. The Court must thus examine whether the
provision in question fulfils the foreseeability requirement.
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).
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.
it is true that in January 1997, when the article in question was
published, 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
the subject of careful consideration. Had the applicant company had
doubts about the exact scope of the provision in question it should
have either sought advice about its contents or refrained from
disclosing B.'s identity. Moreover, the applicant company, which is a
publishing company, 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.
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 had 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
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).
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).
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,
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).
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).
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).
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.
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).
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).
to the facts of the present case, the Court notes that the applicant
company was ordered to pay damages, in its capacity as a publishing
company, on the basis of the remarks made in an article and for
having published B.'s picture.
Court observes at the outset that the article, which was titled “A.
defends fiercely his post”, focused mainly on A.'s
conviction but in the caption to B.'s picture her name, conviction
and the fact that she was A.'s female friend were mentioned. The
applicant company was rendered liable only for having published B.'s
picture and the caption. The article was published one day after A.
and B.'s convictions.
Court notes that no allegation has been made of factual
misrepresentation or bad faith on the part of the applicant company.
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
article in issue were not in dispute even before the domestic courts.
is clear that B. was not a public figure or a politician but an
ordinary person who was 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 was 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).
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 company was
backlit by these considerations and they cannot be discounted when
assessing the proportionality of the interference with its Article 10
Court further observes that the information in the article mainly
focused on A.'s conviction and its repercussions, namely whether or
not he would be dismissed from his post as National Conciliator. The
only details revealed of B.'s private life were her picture, her
conviction and the fact that she was A.'s female friend, all
circumstances which were already public knowledge before the
publication of the article in issue. Moreover, these facts were
presented in an objective manner. Thus, the information concerning B.
was essentially limited to her conviction and to facts which were
inherently related to A.'s story. In this respect the case differs
from the case of Von Hannover v. Germany (cited above,
it is to be noted that the disclosure of B.'s identity in the
reporting had a direct bearing on matters of public interest, namely
A.'s conduct and his ability to continue in his post as a high-level
public servant. As B. had taken an active and willing part in the
events of 4 December 1996, leading to A.'s conviction and
dismissal, it is difficult to see how her involvement in the events
was not a matter of public interest. Therefore, the Court considers
that there was a continuing element of public interest involved also
in respect of B. In this connection, the Court notes that, when
assessing the cases stemming from the incident of 4 December
1996, 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, cited above; Flinkkilä and others
v. Finland, cited above; and Jokitaipale and others v.
Finland, no. 43349/05, 6 April 2010). 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
Court notes that the emphasis in the article in question was clearly
on A. and on the repercussions of his conviction on his career. It is
possible that the events were presented, especially B.'s picture, in
a somewhat excessive manner to boost the sales of the newspaper, but
this is not in itself sufficient to justify the applicant company's
obligation to pay damages.
Court observes that, on the other hand, prior to the publication of
the article in question, the incident of 4 December 1996 and its
immediate consequences had been widely publicised and discussed in
the media. Thus, the article 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).
the Court notes that the article was published immediately after the
convictions of A. and B., leading to the dismissal of A. The article
was thus closely linked in time to these events.
the Court has taken into account the severity of the sanctions
imposed on the applicant company. It notes that the applicant company
was ordered to pay B. EUR 5,000 plus interest as
non-pecuniary damage and her costs and expenses. The severity
of the amount 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).
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 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; Soila v. Finland, no. 6806/06, 6
April 2010; and Jokitaipale and others v. Finland, cited
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.
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
notwithstanding the margin of appreciation afforded to the State in
this area, the Court considers that the domestic courts failed to
strike a fair balance between the competing interests at stake.
has therefore been a violation of Article 10 of the Convention.
III. REMAINDER OF THE APPLICATION
A. The second applicant
second applicant also complained about the length of proceedings, the
lack of reasoning and the interference with his right to freedom of
expression. The Court notes, however, that the second applicant did
not apply for leave to appeal to the Supreme Court and therefore the
final judgment in his regard is the Appeal Court's judgment of
12 October 2004. As the second applicant lodged his application
with the Court only on 9 February 2006, his application was not
lodged within the six months' time-limit. It follows that his
complaints must be rejected as being out of time within the meaning
of Article 35 §§ 1 and 4 of the Convention.
B. The applicant company
applicant company 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. It claimed
that the name of a convicted person was not a fact that fell within
the scope of private life and that a case could not be declared
secret on that basis alone.
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, and took into
account the incident and B.'s conviction as well as the fact that her
position in society was not such that the exception for public
figures normally applied to her. Therefore the Court finds that the
reasoning is acceptable from the standpoint of the fairness
requirements of Article 6.
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 applicant company had full access to the
case file together with a reasoned judgment and it was not impaired
in the exercise of its 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 no impact either on the applicant company's position
as a party to the case or on the actual fairness of the proceedings.
The Court therefore finds that there is no indication of any
violation in this respect.
follows that these complaints must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
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.”
applicant company claimed EUR 14,374.47 in respect of pecuniary
Government contested the existence of a causal link between the
pecuniary damage suffered and the alleged violation of Article 6 §
1 of the Convention. In the event of a violation being found under
Article 10 of the Convention, the Government conceded that the
applicant company was entitled to compensation. However, no
calculation of the interest paid had been provided. The Government
left it to the Court's discretion whether the applicant company had
submitted sufficient documentation to support its claims.
Court finds that there is a causal link between the violation found
under Article 10 and the alleged pecuniary damage. Consequently,
there is justification for making an award to the applicant company
under that head. Having regard to all the circumstances, the Court
awards the applicant company EUR 12,000 in compensation for pecuniary
B. Costs and expenses
applicant company also claimed EUR 11,348.05 for the costs and
expenses incurred before the domestic courts and EUR 7,589.40 for
those incurred before the Court.
Government maintained that only fees and expenses relating to
admissible complaints could be awarded. No specification relating to
the hours used for each measure performed, as required by Rule 60 of
the Rules of Court, had been submitted and no award should therefore
be made in this respect. In any event, no postage or photocopying
expenses should be compensated as they were included in the counsel's
fee. The total amount of compensation for costs and expenses for the
applicant company should not exceed EUR 2,500 (inclusive of
value-added tax). If a violation was found in respect of only one
Article, the reimbursement of costs and expenses should be
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 company the global sum
of EUR 4,000 (including any value-added tax) under this head.
C. Default interest
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 length of the proceedings) and 10 of the Convention
in respect of the applicant company 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;
the respondent State is to pay the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
12,000 (twelve thousand euros), plus any tax that may be chargeable,
in respect of pecuniary damage;
4,000 (four thousand euros), plus any tax that may be chargeable to
it, in respect of costs and expenses;
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
company'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