M.P. v. FINLAND - 36487/12 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 1121 (15 December 2016)

In the case of M.P. v. Finland,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Mirjana Lazarova Trajkovska, President,
          Ledi Bianku,
          Kristina Pardalos,
          Linos-Alexandre Sicilianos,
          Robert Spano,
          Armen Harutyunyan,
          Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 15 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 36487/12) 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 two Finnish nationals, Ms M.P. and her minor daughter E.B. (“the applicants”), on 13 June 2012. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicants were represented by Ms Helena Molander, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

3. The applicant mother alleged, in particular, that her freedom of expression under Article 10 of the Convention had been violated as she had been convicted of defamation for having expressed her concerns about her daughter.

4. On 24 March 2014 the complaint under Article 10 of the Convention concerning the applicant mother was communicated to the Government and the remainder of the application, including all complaints concerning the applicant child, was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. Accordingly, the applicant mother remains the only applicant in this case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971 and lives in Helsinki.

6. The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child’s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child’s father.

A. First set of proceedings concerning custody and contact rights

7. In July 2006 the child’s father initiated custody and contact rights proceedings vis-à-vis his daughter.

8. In August 2006 the Kouvola District Court (käräjäoikeus, tingsrätten) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2007. According to the applicant, the child was often restless and talked strangely after the meetings with her father.

9. On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision.

10. On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights.

11. On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court’s decision.

B. First involvement of the child welfare authorities and the police

12. The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter’s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse.

13. On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation.

14. On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more.

15. On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime.

16. After having received information about the conclusion of the pre-trial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter.

17. In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pre-trial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police.

C. Further involvement of the child welfare authorities and the police

18. On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child’s father. She also reported the matter to the social workers in Helsinki.

19. On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found.

20. The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre-trial investigation was concluded on 4 May 2008 as there was no appearance of any crime.

D. Administrative complaints

21. On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (lääninhallitus, länsstyrelsen).

22. On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), asking him to investigate why the police did not hear her child during the pre-trial investigation.

23. On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.

24. On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year age-limit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant’s case.

E. Defamation proceedings

25. On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant’s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child.

26. On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime.

27. On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in non-pecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court’s reasoning was the following:

“The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “reason to suspect” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl’s somatic status was normal and there were no external signs of sexual abuse.

From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually-coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old.

On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child’s other, more general symptoms have given sufficient confirmation of her insinuation.

When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child’s father] and that its content, being almost of the worst kind, was bound to cause him suffering.

...

Ignorance of legal provisions does not eliminate the punishability of an act. Taking into account what has been said above about the circumstances of the case and the nature of the criminal insinuation, there is no basis for considering that M.P.’s act could be regarded as manifestly excusable due to a mistake.

On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him.”

28. By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court (hovioikeus, hovrätten). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child’s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre-trial investigation. She considered this mistake to be so substantial that the danger to her child’s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008.

29. On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following:

“On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [...] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [...] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre-trial investigation into [the child’s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pre-trial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.”

30. By letter dated 7 March 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.

31. On 14 December 2011 the Supreme Court refused the applicant leave to appeal.

F. Second set of proceedings concerning custody and contact rights

32. On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him.

33. On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal.

34. The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland) which was declared inadmissible on 17 April 2014.

G. Most recent administrative appeals

35. On an unspecified date the applicant asked the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board (Poliisihallitus, Polisstyrelsen).

36. On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified.

II. RELEVANT DOMESTIC LAW AND PRACTICE

37. The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:

“Article 10 - The right to privacy

Everyone’s private life, honour and the sanctity of the home are guaranteed. ...

...

Article 12 - Freedom of expression and right of access to information

Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”

38. Chapter 24, section 9, subsections 1 and 2, of the Penal Code (rikoslaki, strafflagen, Act no. 531/2000) provided, at the relevant time, as follows:

“A person who

1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or

2) disparages another person in a manner other than referred to in point 1

shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months.

Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.”

39. The above-mentioned provision was amended in 2013 (Act no. 879/2013). The amended provision entered into force on 1 January 2014 and reads currently as follows:

“A person who

1) spreads false information or a false insinuation of another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or

2) disparages another in a manner other than referred to in point 1)

shall be sentenced for defamation to a fine.

Also a person who spreads false information or a false insinuation about a deceased person, so that the act is conducive to causing suffering to a person to whom the deceased was particularly close, shall be sentenced for defamation.

Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity and that does not obviously exceed the limits of propriety does not constitute defamation referred to in subsection 1, point 2).

Presentation of an expression in the consideration of a matter of general importance shall also not be considered defamation if its presentation, taking into consideration its contents, the rights of others and the other circumstances, does not clearly exceed what can be deemed acceptable.”

40. The relevant provisions of the Child Welfare Act (lastensuojelulaki; barnskyddslagen, Act no. 683/1983) and the domestic practice are outlined in the Court’s judgment in Juppala v. Finland, cited above, §§ 19-22.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

41. The applicant complained under Article 10 of the Convention of a violation of her freedom of expression.

42. Article 10 of the Convention 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. ...

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.”

43. The Government contested that argument.

A. Admissibility

44. The Court notes that the applicant’s complaint under Article 10 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

45. The applicant argued that she had been convicted on the basis of one telephone conversation with a social worker on 19 October 2007. She had been convicted of something that was not a crime in Finland, but a duty. The Juppala case (see Juppala v. Finland, cited above) should have been taken into account in the domestic proceedings. The applicant had had an even greater duty to help her child than the grandmother in the Juppala case as, according to Finnish law, a parent had a duty to protect a child who was in their custody. In this case it had been the social authorities themselves who had made the first report to the police. When it had become clear that the child was not heard, the applicant had the duty to continue demanding a better examination of the case. This duty continued as long as there was a concern and no alternative explanation had been provided for the child’s symptoms, and no such explanation was ever provided in the present case. The social authorities had been the correct and only authorities to help the child.

46. The applicant maintained that she had been communicating only with authorities acting under professional secrecy and that she had been correct with the child’s father. She could not have committed any crime simply by seeking help and proper examination of her child’s case, as that was her duty. She had acted in good faith and on the advice of a social worker. Therefore the applicant’s right to freedom of expression had been seriously violated when she was convicted of defamation.

(b) The Government

47. The Government found it uncontested that the applicant’s conviction for defamation and the liability to pay damages had amounted to an interference with her right to freedom of expression under Article 10 of the Convention. The impugned measures had had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code. The interference had thus been “prescribed by law”. The impugned measures had also pursued the legitimate aim of protecting the private life and reputation of the child’s father.

48. The Government noted that, according to the Appeal Court, the applicant had not presented any evidence showing that she had reason to consider that the information she had disclosed about the child’s father to the child welfare authorities was true. This was especially so as the applicant had known that the pre-trial investigation had just been concluded and that this investigation had not found any evidence to support her allegations. The pre-trial investigation had been conducted only on the basis of the applicant’s allegations.

49. The Government argued that the present case differed crucially from the case Juppala v. Finland. In the latter case the applicant had clearly seen the child’s bruised body, she had acted in good faith and was thus entitled to use the reporting system without any potential “chilling effect” of a criminal prosecution, whereas in the present case the applicant had already used the reporting system and a careful pre-trial investigation had been concluded in the matter with no results. The Government maintained that the applicant could not be considered as having acted in the same kind of good faith as the applicant in the Juppala case, as there were no veritable signs or symptoms supporting her allegations. Moreover, the Appeal Court had examined the case as a whole and taken into account the applicant’s particular status in sentencing. The national authorities were thus entitled, in the circumstances of the case, to interfere with the applicant’s right to freedom of expression and that interference was proportionate and necessary in a democratic society. There was thus no violation under Article 10 of the Convention.

2. The Court’s assessment

50. It is common ground between the parties that the applicant’s conviction constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Moreover, the Government argued that the impugned measures were “prescribed by law” as they had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code, and that the interference also pursued the legitimate aim of protecting the private life and reputation of the father of the child. The applicant did not submit any observations in this respect. The Court accepts that the applicant’s criminal conviction was based on a reasonable interpretation of the Penal Code, and that the interference was thus “prescribed by law” (see Juppala v. Finland, cited above, § 40; 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). It also pursued the legitimate aim of protecting the private life and reputation of the father of the child.

51. The Court recalls that an interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In its assessment, 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 Nikula v. Finland, cited above, § 44). The Court recalls that the quality of judicial review in respect of the necessity of the measure is of particular importance in the context of the proportionality assessment under Article 10 of the Convention (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)). The margin of appreciation in this context is measured by reviewing the extent to which the reasoning of the national courts engages with the general principles under Article 10 and the extent to which the balance struck between the competing rights at the domestic level is satisfactory (see Erla Hlynsdόttir v. Iceland (no. 3), no. 54145/10, § 59, 2 June 2015; and Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012). In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the declarations held against the applicant and the context in which they were made.

52. This case calls into consideration two countervailing interests, each of which are of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unwarranted interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as actual or possible victims of crime. The Court has emphasised that children and other vulnerable individuals in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21-27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62-64, Reports of Judgments and Decisions 1996-IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37). The Court would refer, in particular, to the case of A. v. the United Kingdom (23 September 1998, § 22, Reports 1998-VI) where a stepfather had subjected a child to treatment contrary to Article 3 and was acquitted, having argued that the treatment amounted to “reasonable chastisement”. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.

53. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a challenging form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The issue in connection with the present application is about striking a proper balance between the need to protect children against the risk of potentially serious harm and the need to protect a parent against being wrongly suspected of having abused his or her child.

54. The Court notes that the applicant first contacted the child welfare authorities and voiced her concerns about the child and her suspicions of sexual abuse while the parents were engaged in a dispute relating to the custody and contact rights in respect of the child. Following the applicant’s first contact in mid-August 2007, the child welfare authorities decided to report the matter to the police for investigation. A pre-trial investigation was conducted but it was concluded with the finding that there was no appearance of any crime. After having been informed of this conclusion, the applicant again contacted the child welfare authorities on 19 October 2007, insisting on another investigation. It was in respect of her second appeal to the authorities to pursue a criminal investigation against the father of her child that the applicant was later charged and convicted of defamation. The applicant’s third report regarding suspicions of sexual abuse of her child, addressed to the police on 18 January 2008, is not the subject of the present case.

55. The seriousness of child abuse as a social problem requires that persons who act in good faith (see Juppala v. Finland, cited above, § 42; and, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008), in what they believe are the best interests of the child, should not be influenced by the fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty toward the child in making these decisions should not be hampered by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded. On the other hand, it is justified that acts motivated by a personal grievance or antagonism or an expectation of personal advantage be discouraged, including in the context of disputes relating to the custody or visiting rights concerning a child.

56. In the Juppala case the Court noted that the possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure, should be available to any individual without the potential “chilling effect” of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred (see Juppala v. Finland, cited above, § 43). In this connection, the Court notes and welcomes the amendment made by the Finnish authorities in Chapter 24, section 9, of the Penal Code by which the possibility of imposing imprisonment for defamation was removed from penal sanctions available under that provision (see paragraph 39 above).

57. In the present case, the Court cannot overlook the fact that according to the findings of the domestic courts, the applicant did not - following the closure of the pre-trial investigation that had been carried out on the basis of her first report of suspicions of abuse - have a sufficient factual basis for allegations of criminal conduct by her child’s father. Nor can the Court disregard the fact that the applicant’s allegations had been raised while a dispute over the custody and visiting rights of the child was pending before the courts. While the Court is not in a position to enter into any assessment of its own regarding the facts of the case, nor is it its role to do so, or to speculate about the motives involved in the events that preceded the defamation proceedings which are the subject of the applicant’s complaint, the Court notes the following circumstances in particular.

58. Firstly, the criminal charge against the applicant was based solely on statements made by her in a single telephone conversation with an official of the child welfare services, who herself was subject to obligations arising from professional secrecy. Secondly, while the charge and conviction were based on an unsubstantiated allegation that the child was at risk of being sexually abused by the father, the evidence as recorded in the judgment of the District Court does confirm, inter alia, that the applicant had expressed the concern that the pre-trial investigation had been inadequate as the child herself had not been interviewed because of her young age.

59. The Court must look not only at the content of the interference complained but also at the context in which it was made (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR 2004-XI). Article 10 of the Convention protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Nikula v. Finland, cited above, § 46). In the present case, the context of the interference with the applicant’s Article 10 rights was the confidential telephone conversation with a public official. The Court does not find it irrelevant, as did the Appeal Court, that the insinuation was made to a public official who was bound by confidentiality but, on the contrary, finds that this fact is relevant to the assessment of the proportionality of the interference (see Yankov v. Bulgaria, no. 39084/97, § 141, ECHR 2003-XII (extracts)).

60. Moreover, the Court does not find that bringing criminal charges against the applicant and convicting her for defamation was a course of action that can be considered proportionate with a view to the requirements of Article 10 of the Convention. Although the applicant was only punished by a fine, the Court is unable to accept in the present case that there was any “pressing social need” to interfere with the applicant’s freedom of expression by imposing a criminal sanction on her.

61. Under these circumstances, the Court finds that the reasons relied on by the domestic courts were not relevant and sufficient to show that in the present case the interference complained of was “necessary in a democratic society”. Having regard to all the foregoing factors, and taking into account the margin of appreciation afforded to the State in this area, the Court considers that the domestic authorities failed to strike a fair balance between the competing interests at stake.

62. There has therefore been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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

64. The applicant claimed 43,182.49 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.

65. The Government considered that the pecuniary damage listed by the applicant as “other costs which were the direct consequences of the case” in the amount of EUR 35,180.63 should be rejected in full whereas the remaining pecuniary damage of EUR 8,001.86 plus interest could be accepted. As to the non-pecuniary damage, the Government considered that compensation in the special circumstances of the present case should not exceed the amount of EUR 2,500.

66. The Court finds that there is a causal link between the violation found and the pecuniary damage alleged in the amount of EUR 8,001.86; it therefore accepts this claim and awards the applicant EUR 8,001.86 as compensation for pecuniary damage. As to non-pecuniary damage, it awards the applicant EUR 5,000.

B. Costs and expenses

67. The applicants also claimed EUR 19,040.63 for the costs and expenses incurred before the domestic courts and EUR 19,500 for those incurred before the Court.

68. The Government considered that, as far as the costs and expenses incurred before the domestic courts were concerned, the applicant’s claim should be rejected in full by virtue of Rule 60 of the Rules of Court due to the lack of any itemisation. As to the costs and expenses incurred before the Court, the Government estimated the applicant’s claims as excessive as to quantum and considered that reasonable compensation should not exceed EUR 3,900 (inclusive of value-added tax).

69. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings for the lack of itemisation and considers it reasonable to award the sum of EUR 6,000 (inclusive of value-added tax) for the proceedings before the Court.

C. Default interest

70. The Court considers it appropriate that the default interest rate 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

1. Declares the complaint concerning Article 10 of the Convention admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. 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 8,001.86 (eight thousand and one euros and eighty-six cents), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicants, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Renata Degener Mirjana Lazarova Trajkovska
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> M.P. v. FINLAND - 36487/12 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 1121 (15 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1121.html Cite as: [2016] ECHR 1121, CE:ECHR:2016:1215JUD003648712, ECLI:CE:ECHR:2016:1215JUD003648712