[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF JUPPALA v. FINLAND
(Application
no. 18620/03)
JUDGMENT
STRASBOURG
2
December 2008
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 Juppala 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18620/03) 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, Ms Eine Juppala (“the
applicant”), on 16 June 2003.
- The
applicant was represented by Mr M. Fredman, 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 a violation of Article 10 of the Convention.
- On
23 June 2006 the President of the Fourth Section of the Court decided
to give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was decided
to examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1929 and lives in Ylöjärvi.
- On
20 July 2000 she took her daughter's son to a doctor. The boy was
three years old at the time.
- According
to the doctor's report, the applicant said that she had noticed a
bruise on the boy's back, which might have been caused by an assault,
and that his behaviour had been abnormal after having visited his
father, T. The applicant had strong suspicions that the injuries were
consistent with an assault. Furthermore, it was written in the report
that the applicant had informed the doctor that the boy had said that
the bruise had been caused by a punch. The applicant further stated
that in January 2000 she had noticed signs of assault for the first
time, but that T. had explained that these were the result of a fall
on the stairs. The doctor wrote in his report that the bruise noted
on the boy's back was consistent with a punch and thus supported the
boy's account, given also to the doctor, that he had been hit by his
father.
- Later
the same day, the doctor reported an alleged assault to the child
welfare authorities, although the applicant had objected to a report
being made.
- On
17 August 2000 T. requested the police to investigate whether the
applicant had committed an offence by alleging that he had hit his
son. He maintained that he had never assaulted the boy. On 22 August
2000 he further requested the police to investigate whether the
applicant had committed an offence, such as deprivation of liberty,
by taking the boy to a doctor.
- On
26 April 2001 the public prosecutor preferred charges against the
applicant for defamation without better knowledge (ei vastoin
parempaa tietoa tehty herjaus, smädelse dock icke
emot bättre vetande). According to the charge, the applicant
had given information to the doctor implying that T. had assaulted
his son. The doctor had been given to understand that T. had
assaulted the boy on several occasions, most recently during the
previous weekend. The applicant did not have reasonable cause to
support her allegation. On 21 May 2001 T. joined the proceedings
and claimed from the applicant compensation for non-pecuniary damage
amounting to 10,000 Finnish marks (FIM, about 1,682 euros (EUR))
and reimbursement of his legal expenses.
- On
24 August 2001 the Tampere District Court (käräjäoikeus,
tingsrätten) held an oral hearing. In its judgment the court
held that it remained unclear whether the applicant had implied that
the boy had been hit by his father or whether the doctor's report
merely recorded his own impression based on his discussion with the
applicant and the child. Applying the principle in dubio pro reo,
the court rejected the charge. The presiding judge, however,
dissented, finding the applicant guilty of defamation without better
knowledge. She noted that, taking the facts as presented, there was
no reasonable cause to support the belief that T. had assaulted the
boy. She further found that the boy's own statement could not as such
be considered a reasonable ground, especially given the fact that it
was not known whether the applicant had discussed the bruise with him
before visiting the doctor.
- T.
appealed to the Turku Court of Appeal (hovioikeus, hovrätten).
On 20 February 2002, after an oral hearing, it overturned the
District Court's judgment and convicted the applicant of defamation
committed without better knowledge. No fines or other penalties were
imposed, but the applicant was ordered to pay compensation for
non-pecuniary damage amounting to EUR 504.56 and legal costs of EUR
2,861.11. It reasoned:
“At the hearing [the applicant] and [the doctor]
have essentially given the same account of the events as before the
District Court. [The applicant] has, however, stated that having
noticed the bruise on the child's back on the evening before the
visit to the doctor's, she had asked the boy where it had come from
and he had said that his father had hit him.
According to the doctor, the applicant had provided the
preliminary data, which he had first written down on paper. Later
they had been recorded in the medical report based on his dictation.
He had dictated the information immediately after the applicant and
the child had left the room. The report did not contain any
conclusions made by the doctor himself.
On the basis of the doctor's testimony and the case
record, it has been proved that the applicant intentionally, however
without better knowledge, said that [the father] was guilty of having
assaulted his three-year-old son in such a way that she in fact gave
the doctor to understand that the father had assaulted his son during
the weekend preceding 20 July 2000. However, the Court of Appeal
finds that it has not been shown that the applicant gave the doctor
to understand that the father had assaulted his son at other times.
As described above, the applicant had discussed the
bruise with the boy. He may also have heard the applicant give the
preliminary data at the doctor's before the doctor spoke to him.
Having regard to this and the boy's age, the mere fact that he told
the doctor that his father had hit him cannot be considered to be
significant enough to constitute reasonable cause for the reproach.
Nor has the applicant presented any other such reasons for the
reproach on the basis of which she could be considered to have had
reasonable cause to believe her insinuation to be true.
On the above grounds, the Court of Appeal considers that
the applicant is guilty of defamation without better knowledge.
According to the doctor, the applicant had been worried
about the child's condition and he considered that the visit had been
justified. Having regard to the circumstances, it was forgivable that
the applicant, in whose care the child had been, had not thoroughly
weighed what she had told the doctor. On these grounds, the Court of
Appeal does not impose a sentence pursuant to Chapter 3, Article 5,
subsection 3 (2) [of the Penal Code].”
- The
applicant sought leave to appeal from the Supreme Court (korkein
oikeus, högsta domstolen). She argued that the right to
freedom of expression was violated if a person could not rely on the
account of a child who had visible signs of injury or discuss his or
her own impressions of the facts with a doctor, who was bound by
professional secrecy, without being afraid of later being found
guilty of defamation.
- On
17 December 2002 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
10 (as amended by Act no. 969/1995, which took effect on 1 August
1995 and remained in force until 1 March 2000) of the Constitution
Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act
no. 94/1919), provided:
“Everyone has the freedom of expression. Freedom
of expression entails the right to express, disseminate 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. Provisions on
restrictions relating to pictorial programmes that are necessary for
the protection of children may be laid down by an Act.”
The
same provision appears in Article 12 of the current Constitution of
2000 (Suomen perustuslaki, Finlands grundlag; Act no.
731/1999).
- Section
8 of the Constitution Act (as amended by Act no. 969/1995)
corresponded to Article 10 of the current Constitution, which
provides that everyone's right to private life is guaranteed.
- Chapter
27, article 2(1), of the Penal Code (rikoslaki, strafflagen; Act
no. 908/1974, as in force until 1 October 2000), provided that a
person alleging, albeit not contrary to his or her better knowledge,
that someone had committed an offence was to be convicted of
defamation and sentenced to a fine or imprisonment for a maximum term
of six months, unless he or she could show reasonable cause in
support of the allegation.
For
the conduct to be intentional, the offender had to be aware of the
fact that the defaming words might subject the person concerned to
contempt, or harm his or her profession or career. In cases where the
offender has not understood the defaming nature of the conduct, it
has not been considered intentional, but the fact that the offender
has been mistaken about the truth of the defaming allegation has not
changed the intentional nature of his or her conduct. Only in cases
where the offender has been able adequately to prove the truth of his
or her allegations has it been possible to free him or her from
liability.
In
one of its precedents (KKO 2006:10), the Supreme Court held
that a person committed defamation when she failed to verify the
truthfulness of the information she provided when requesting crime
investigation by the police and making a notification under the Child
Welfare Act to the social welfare authorities, implying that another
person had committed sexual and other offences.
- Under
the terms of Chapter 5, section 6, of the Tort Liability Act
(vahingonkorvauslaki, skadeståndslagen; Act
no. 412/1974), damages may be awarded for the distress arising from
an offence against someone's liberty, honour or domestic peace or
from another comparable offence.
- Section
40 of the Child Welfare Act, in force until 1 January 2008,
(lastensuojelulaki; barnskyddslagen, Act no. 683/1983)
provided that if, in the course of his or her activities, an employee
or elected official in health care, social welfare, education, the
police or the church learned about a child in apparent need of
family-oriented or individual child welfare measures, he or she had
to notify the social welfare board without delay. The provision has
been interpreted to mean that any confidentiality obligation is
superseded by the duty to notify.
The
wording “apparent need of child welfare measures”
referred to section 12, which set a clearly lower threshold for child
welfare measures than the threshold set in section 16 for taking a
child into public care. Even a less than serious risk to the child's
health or development warrants a notification to the social welfare
board. The word “apparent” is used in order to encourage
notifications also in cases where there exists no full evidence of or
certainty about the existence of such a risk. When a child welfare
official receives a notification he or she must verify the facts and
assess whether support measures are needed. The wording has left room
for interpretation of how certain the notifier must be of the child's
need for child welfare measures. In particular, there has been
uncertainty about whether the mere suspicion of such a need suffices
for making a notification.
- According
to the Government Bill (HE 252/2006 vp) for the enactment of the new
Child Welfare Act (Act no. 417/2007 which entered into force on 1
January 2008), in order to safeguard care for children, the threshold
for making a child welfare notification according to Section 25
should not be excessively high. If a person considering making such a
notification has difficulties in assessing whether his or her concern
about the child is sufficient to justify notifying the authorities,
he or she may, if necessary, consult for instance the social welfare
authorities without communicating to them the child's name. The
provision expressly provides that any confidentiality obligation is
superseded by the duty to notify. Section 25(6) provides that the
child welfare authorities must report to the police any case where
there is good reason to suspect that a sex offence, homicide or
bodily injury has been directed at the child in the environment in
which he or she was growing up and the suspected offence carries a
maximum penalty of at least two years' imprisonment.
- As
a rule, the child concerned is entitled to be informed of the
notifier's identity. In practice, however, cases exist where
disclosure of the identity of a private person making such a
notification would be particularly harmful to, for instance, the
child's best interests or the notifier's safety. Authorities need not
provide a party with information on identity, if the conditions
mentioned in section 11 of the Openness of Government Activities Act
(laki viranomaisten toiminnan julkisuudesta; lagen om offentlighet
i myndigheternas verksamhet; Act no. 621/1999) are fulfilled: A
party shall not have the right of access to a document if such access
would be contrary to a very important public interest, the interest
of a minor or some other very important private interest. According
to the Government Bill (HE 30/1998 vp), the best interests of a child
may justify protecting the notifier's identity on the basis of an
overall case-by-case consideration. As an example, the Government
Bill mentions the situation where the notifier is a person close to
the child, for instance a grandparent, and to disclose his or her
identity would break the child's relationship with an adult important
to his or her welfare. Disclosure of the notifier's identity may, in
individual cases, also be in conflict with the public interest, if
providing the information may jeopardize the implementation of the
purpose of child welfare measures.
- In
September 2005 the Ombudsman for Children (lapsivaltuutettu,
barnombudsmannen) took up her duties. The Ombudsman is entrusted
with the task of promoting the best interests and rights of the child
at the general level of administration, social policy and
legislation. The Ombudsman may issue recommendations, guidelines and
advice but she cannot receive individual complaints. The Ombudsman is
an independent authority who works in liaison with the Ministry of
Social Affairs and Health (sosiaali- ja terveysministeriö,
social- och hälsovårdsministeriet). The Parliamentary
Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman) retains her mandate regarding children and
continues to act on individual complaints addressed to her.
III. INTERNATIONAL MATERIALS
- According to Article 19 of the United Nations
Convention on the Rights of the Child (1989; yleissopimus lapsen
oikeuksista, konventionen om barnens rättigheter;
SopS 60/1991) – ratified by all members of the Council of
Europe – provides:
“1. States Parties shall take all
appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in the
care of parent(s), legal guardian(s) or any other person who has the
care of the child.
2. Such protective measures should, as
appropriate, include effective procedures for the establishment of
social programmes to provide necessary support for the child and for
those who have the care of the child, as well as for other forms of
prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child
maltreatment described heretofore, and, as appropriate, for judicial
involvement.”
- In
its concluding observations (CRC/C/15/Add. 272) of 20 October 2005
on the third periodic report of Finland (CRC/C/129/Add.5) the United
Nations Committee on the Rights of the Child shared the concern of
the Parliamentary Ombudsman of Finland that violence against children
and sexual abuse within families is one of the most serious obstacles
to the full implementation of children's rights in Finland. In the
light of Article 19 of the Convention, the Committee recommended that
Finland, inter alia, strengthen awareness-raising and
education campaigns with the involvement of children in order to
prevent and combat all forms of child abuse and also strengthen
measures to encourage reporting of instances of child abuse,
including by giving opportunities to this end to children in
alternative care, and to prosecute the perpetrators of these acts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that she had been found guilty of defamation
even though she had only honestly voiced her impression of the causes
of her grandchild's bruises to the doctor, who was bound by
professional secrecy. She argued that the Court of Appeal's judgment
had a negative impact on the rights of those in need of the services
of a doctor in sensitive cases, such as victims of domestic violence,
since they might refrain from seeking medical help due to fear of
being prosecuted.
- Article
10 reads:
“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 that argument.
A. Admissibility
- The Court notes that the application 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
1. The parties' submissions
- The
applicant argued that the freedom of expression was at its widest in
a doctor-patient relationship. Referring to the principles laid down
in the case of Nikula v. Finland (no. 31611/96, § 44,
ECHR 2002 II) the applicant submitted that, just like defence
counsel's freedom of expression, the freedom of expression in a
doctor-patient relationship required particular protection. When a
parent or relative finds that a small child has bruises, should he or
she be afraid to repeat to the doctor what the child has told him or
her? If there exists doubt as to the origin of a bruise, should it be
punishable to engage in a discussion with the doctor about the
various possibilities? A doctor must be able to rely on the
truthfulness of a patient's statement and it was equally clear that
false statements regarding, inter alia, sexual abuse, were
punished. A medical doctor was, however, an expert in matters
relating to physical abuse. If the patient raises a concern regarding
his or her son's or grandson's injuries, the doctor can directly
judge whether or not the concerns are substantiated.
- The
applicant had seen a bruise on the boy after he had visited his
father. The boy had told her how the bruise had come about. The
applicant had never accused T. of assaulting his son, but expressed
concern to the doctor as regards the boy's injuries. The doctor had
found the bruise to be consistent with a possible assault by T. of
his son. It is clear that one cannot report assault to the police
unless there is evidence supporting the allegation. It cannot,
however, be so that the required level of certainty is the same both
for reporting an assault to the police and for consulting a doctor to
ask his opinion.
- The
applicant argued that, as regards the requirement of “prescribed
by law”, the relevant repealed provision of the Penal Code was
problematic. It was possible for a person to be sentenced for
defamation even if the act was unintentional, if he was not able to
satisfy the shifted burden of proof, that is, to prove
himself innocent. Furthermore, could a reasonable person be expected
to understand that this provision would be applied when expressing
concern to the family doctor about the origin of bruises on her
grandson? In order for an offence to be punishable, the law had to be
particularly precise. The Supreme Court had delivered 35 published
judgments on defamation or slander. There was no established
doctrine, correcting the imprecision in law, on the basis of which
the applicant could or should have foreseen that she could be
prosecuted.
- The
Government conceded that the liability to pay damages and the
conviction, although the sentence was waived, amounted to an
interference with the applicant's right to freedom of expression. It
had a basis in section 10(1) of the then Constitution Act, Chapter
27, Articles 1 and 2, of the Penal Code and Chapter 5, section 6, of
the Tort Liability Act. Their interpretation in the present case had
in no way been arbitrary. The interference aimed to protect the
rights of the boy's father. Taking into account the margin of
appreciation left to the Contracting States, the national authorities
were, in the circumstances of the case, entitled to interfere with
the exercise of the applicant's right to freedom of expression
(compare Tammer v. Estonia, no. 41205/98, § 69,
ECHR 2001 I), and this interference was necessary in a
democratic society. The impugned measures, the waived sentence, the
modest non-pecuniary damages and costs were “proportionate to
the legitimate aim pursued” and the reasons adduced by the
courts to justify them were “relevant and sufficient”
within the meaning of Article 10 § 2.
- The
Government submitted that the Court of Appeal had found it proved
that the applicant had alleged that T. had assaulted his son, by
giving the doctor to understand that an assault had taken place. The
applicant had not produced such grounds for the suspicion that would
justify her allegations or prove that the insinuations were true. The
fact that the boy had told her that his father had punched him could
not be accorded significance as a reasonable cause for the suspicion,
considering his young age and the fact that she had discussed the
matter with him the previous evening, and as he might also have heard
the preliminary information provided by her prior to the discussion
between him and the doctor.
- The
case mainly involved assessment of evidence. The Court of Appeal
firstly assessed whether the applicant had intentionally expressed a
suspicion that T. had assaulted the boy, finding in the affirmative.
Secondly, it assessed whether the applicant had sufficient cause to
express her suspicion that T. had committed an assault. The court
answered this question in the negative, finding that the applicant
had not produced reasonable cause required by the Penal Code in
support of her suspicion. Therefore, it convicted her of defamation.
- In
the light of the evidence provided, the Court of Appeal had not and
could not have taken a stand on whether the applicant's report to the
doctor on a suspected assault was originally expressed by her or
whether the boy had told her so. The court assessed the case as a
whole, took account of the applicant's particular status as the boy's
grandmother, and considered her action excusable, waiving punishment
and only ordering her to compensate for the distress caused to T.
- Assessing
the type of the boy's injury and determining the need for medical
care or protecting the doctor-patient relationship did not require
the name of the person who might have caused the bruise to be
mentioned. Medical confidentiality is without significance, because
the mere informing of an unfounded suspicion may fulfil the essential
elements of an offence.
- As
regards the reference to the case of Nikula v. Finland (cited
above) the Government submitted that it was not as such comparable to
the case under consideration, because it concerned defence counsel's
freedom of expression, which required particular protection, whereas
the present case concerned a private individual's freedom of
expression when consulting a doctor.
- As
for the applicant's view that the old defamation provision was not
sufficiently precise to permit her to foresee how it would be applied
in her case, the Government noted that it laid down expressly that
reasonable cause must be produced in support of the reproach and its
application was therefore foreseeable. Its application became
established case-law over a long period of time, on the basis of
which it was clear that expressing unfounded suspicions of a crime
committed by another person was to be considered defamation.
2. The Court's assessment
- 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 remark held against the applicant
and the context in which it was made.
- It
was 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. Furthermore,
the parties agreed that the interference pursued a legitimate aim,
namely the protection of the reputation or rights of others, within
the meaning of Article 10 § 2. The Court endorses this
assessment. The applicant and the Government differed on whether the
interference was “prescribed by law” and “necessary
in a democratic society.” As to the former issue, the Court
accepts that the applicant's criminal conviction was based on a
reasonable interpretation of the Penal Code as in force at the
relevant time and that the order requiring her to pay damages was
based on the relevant provision of the Tort Liability Act. The
interference was thus “prescribed by law” (see Nikula
v. Finland, cited above, § 34; Selistö v.
Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara
and Iltalehti v. Finland, no. 53678/00, § 43, ECHR
2004 X). It remains to be determined whether the interference in
question was “proportionate to the legitimate aims pursued”
and whether the reasons adduced by the national authorities to
justify it were “relevant and sufficient”. 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 Nikula v.
Finland, § 44).
- This
case calls into consideration two countervailing interests, each of
high social importance: the need to safeguard children from abuse by
their own parents, and the need to protect parents from unnecessary
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 the 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 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 where he 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, requires States to take measures
designed to ensure that individuals within their jurisdiction are not
subjected to torture or inhuman or degrading treatment or punishment,
including such ill-treatment administered by private individuals.
- 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 hard 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 question
raised by this application is how to strike a proper balance when a
parent is wrongly suspected of having abused his or her child, while
protecting children at risk of significant harm. In considering these
questions, the starting point is to note that the applicant acted
properly in considering whether the bruise on the boy's back had been
deliberately inflicted. Having become suspicious, she consulted a
medical doctor who rightly decided to communicate to the child
welfare authorities the suspicion which he personally formed having
examined and interviewed the boy. That is the essential next step in
child protection. The seriousness of child abuse as a social problem
requires that persons who act in good faith (see, 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 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 to the child in making
these decisions should not be clouded by a risk of exposure to claims
by a distressed parent if the suspicion of abuse proves unfounded.
- It
is true that the applicant was convicted merely of defamation
committed “without better knowledge”, to be distinguished
from defamation “despite better knowledge”, that is to
say, intentionally imputing an offence to T. whilst knowing that he
had not committed it (rather than voicing a mere suspicion that he
had). Nonetheless, the threat of an ex post facto review in
criminal proceedings of a concerned grandmother's statement made in
good faith to the child's doctor accords ill with every adult's moral
duty to defend a child's interests. The Court finds it alarming that
the Court of Appeal took the view that the applicant, when there was
no doubt that she had seen the boy's bruised back, was not entitled
to repeat what the boy had told her, that is, that he had been hit by
his father, a matter which he had repeated when interviewed by the
doctor. 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.
- The
Court is aware that the spectre of vexatious litigation is often used
as a reason for requiring that extra care be shown when making a
report on alleged child abuse to the authorities. It was not argued
before the domestic courts or before this Court that the applicant
acted recklessly, that is without caring whether the boy's allegation
of abuse was well-founded or not. On the contrary, even a health care
professional, the medical doctor, made his own assessment that the
case should be reported to the child welfare authorities.
- It
is therefore only in exceptional cases that restriction of the right
to freedom of expression in this sphere can be accepted as necessary
in a democratic society. In the Court's view, sufficient reasons for
the interference have not been shown to exist and the restriction on
the applicant's right to freedom of expression therefore failed to
answer any “pressing social need”.
- There
has therefore been a violation of Article 10 of the Convention.
II. 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
- Under
the head of non-pecuniary damage the applicant claimed 8,000 euros
(EUR) for mental suffering and distress. Under the head of pecuniary
damage she claimed EUR 3,616.41 for the sums she was ordered to
reimburse to the boy's father.
- The
Government considered the claim for non-pecuniary damage excessive as
to quantum. The award should not exceed EUR 2,500. The
Government considered that the applicant might be entitled to
compensation for pecuniary damage as far as the legal costs and
expenses paid to T. were concerned.
- The
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage. Consequently, there is
justification for making an award. The Court awards the applicant EUR
3,616.41 under this head. The Court accepts that the applicant has
also suffered non-pecuniary damage which is not sufficiently
compensated by the finding of a violation of the Convention. Making
its assessment on an equitable basis, the Court awards the applicant
EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 72.62 for the costs and expenses incurred
before the domestic courts and EUR 2,623.21 (inclusive of value-added
tax) for those incurred before the Court.
- The
Government considered that the costs could be awarded in full.
- The
Court considers it reasonable to award the sum of EUR 72.62 for the
domestic proceedings and the sum of EUR 2,623.21 (inclusive of
value-added tax) for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 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;
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
3,616.41 (three thousand six hundred and sixteen euros and forty-one
cents) in respect of pecuniary damage, plus any tax that may be
chargeable;
(iii) EUR
2,695.83 (two thousand six hundred and ninety-five euros and
eighty-three cents) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant;
(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 2 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
