CEDH · PRESS;GENERAL;ENG — 16 novembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA88F4219 { margin-top:0pt; margin-left:21pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   575 16.11.2004   Press release issued by the Registrar   CHAMBER JUDGMENTS KARHUVAARA AND ILTALEHTI v. FINLAND AND SELISTÖ v. FINLAND   The European Court of Human Rights has today notified in writing two judgments [1] in the cases of Karhuvaara and Iltalehti v. Finland (application no. 53678/00) and Selistö v. Finland (no.   56767/00).   In the case of Karhuvaara and Iltalehti v. Finland the Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the first applicant 22,155 euros (EUR) for pecuniary damage, and awarded the second applicant EUR 14,190 for pecuniary damage. The applicants were jointly awarded EUR 29,000 for costs and expenses.   In the case of Selistö v. Finland the Court held by 6 votes to 1 that there had been a violation of Article 10 of the Convention.   Under Article 41 of the Convention, the Court awarded the applicant EUR   3,500 for pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 23,000 for costs and expenses.   (The judgments are available only in English.)   1.     Principal facts   Karhuvaara and Iltalehti The applicants are a publishing company called Kustannusosakeyhtiö Iltalehti (Iltalehti), based in Helsinki, which publishes the national daily tabloid newspaper Iltalehti – with a circulation of about 120,000 - and the publishing company’s editor-in-chief, Pekka Karhuvaara, a Finnish national, who was born in 1954 and lives in Helsinki.   On 31 October 1996 an article appeared in Iltalehti about a criminal trial concerning Mr A.’s drunken and disorderly behaviour and an assault on a police officer. Follow-up stories were published on 21   November and 10 December 1996, reporting that Mr A. was the husband of a Member of the Finnish Parliament and Chair of its Committee for Education and Culture and that he had been given a six-month suspended prison sentence.   The trial was widely publicised and discussed locally and the role of Mrs A., who was not involved in the criminal proceedings, became the subject of, among other things, a television programme on the main national television channel specialising in political satire.   In April 1997 Mrs A. brought proceedings against the applicants for libel and an infringement of her privacy. She relied on section 15 of the Parliament Act ( valtiopäiväjärjestys, Riksdagsordning ), under which criminal offences violating MPs rights during parliamentary sessions are treated as having been committed in particularly aggravating circumstances.   The defendants in the case argued that: the only mention of Mrs A. was that she was married to Mr A., that the case had already been published locally and that their articles contained no new information. Mr Karhuvaara admitted to being only superficially aware of the type of material which had been published. However, under section 32 of the Freedom of the Press Act ( painovapauslaki, tryckfrihetslag ), as an editor-in-chief, he was held responsible for any original material published in his newspaper.   On 27 March 1998 Mr Karhuvaara was convicted of infringement of privacy in particularly aggravating circumstances, within the meaning of section 15 of the Parliament Act, and ordered to pay FIM 47,360 (approximately EUR 7,965). The defendants in the case were also ordered to pay damages of FIM   175,000 (approximately EUR 29,400). The defamation charges were dismissed. The court found that it was the nation-wide publicity that had essentially constituted the criminal offence in question. On 3 December 1998 Helsinki Court of Appeal upheld the District Court’s judgment. On 25 May 1999 the Supreme Court refused leave to appeal.   Selistö Ms Selistö, was convicted and fined for having defamed a surgeon, X., by writing two articles alleging that a patient had died in Seinäjoki Central Hospital on 7 December 1992, as a result of the surgeon’s alcohol consumption during the night preceding the operation. The patient’s widower had filed a criminal complaint, but the county prosecutor had decided not to press charges, on the ground of lack of evidence.   Ms Selistö’s articles, published in January and February 1996, contained interviews with the head doctors of various hospitals concerning the safeguards in place to protect patients against surgery performed by someone in an intoxicated or otherwise inappropriate state.   The domestic courts found that, although X. had not been named, local people could have identified him from the applicant’s articles, which gave an overly provocative and one-sided version of events and the suspicions against the surgeon.   On 14 September 1998 the applicant was convicted of defamation and sentenced to 25 daily income-based fines totalling 4.150 Finnish Marks (FIM) (698 euros (EUR)). She and the newspaper’s editor-in-chief were also ordered to reimburse jointly the complainant’s legal costs of FIM 20,276 (EUR 3,410.20). On 26 May 1999 Vaasa Court of Appeal, after a re-hearing, found the applicant guilty of continued defamation. Her sentence was increased to 50 daily fines, totalling FIM 8,300 (EUR 1,396). On 18 October 1999 the Supreme Court refused leave to appeal.     2.     Procedure and composition of the Court   In the case of Karhuvaara and Iltalehti the application was lodged with the European Court of Human Rights on 20 November 1999 and declared partly admissible on 1   June   2004, and in the case of Selistö the application was lodged on the 9 April 2000 and declared partly admissible on 10   February   2004.   A hearing took place in public on 10 February 2004.   Judgment was given in both cases by a Chamber of 7 judges, composed as follows:   Nicolas Bratza (British), President , Matti Pellonpää (Finnish), Josep Casadevall (Andorran), Rait Maruste (Estonian), Stanislav Pavlovschi (Moldovan), Javier Borrego Borrego (Spanish), Elisabet Fura-Sandström (Swedish), judges , and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgments [2]   Complaints   The applicants in both cases complain of a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   Decision of the Court   Karhuvaara and Iltalehti   Article 10 of the Convention   The case turned on the question whether the admitted interference with the applicants’ freedom of expression was “necessary in a democratic society.”   The Court first observed that there was no evidence or, indeed an allegation, of factual misrepresentation or bad faith on the part of the applicants. In addition the interference with Mrs A.’s private life had to be regarded as limited. On the other hand, the articles had not had any express bearing on political issues or any direct links with the person of Mrs A. as a politician, even though the conviction of the spouse of a politician could affect voting decisions and therefore raised at least to some extent a matter of public interest.   The Court further noted that the domestic courts had placed considerable weight on the finding that the articles were published with the purpose of drawing the readers' attention principally to Mr A.'s marital relationship with Mrs A. The Court accepted this conclusion as a matter of factual observation. This finding was however not in itself sufficient to justify the applicants' conviction.   Another factor to be taken into account was section 15 of the Parliament Act which, at the time, provided Members of Parliament special protection in the discharge of their duties by, among other things, stipulating that various criminal offences perpetrated against them while the Parliament was in session were to be regarded as being committed in particularly aggravating circumstances. This indirect protection afforded to parliamentarians by way of punitive and deterrent criminal sanctions, directed towards third parties, was relevant both to the issues of the justification and the proportionality of the convictions.   In the Court's opinion, given its established case-law to the effect that the limits of permissible criticism are broader as regards politicians, the automatic and unqualified application of section 15 by the domestic courts effectively nullified competing interests guaranteed by Article 10 of the Convention.   Finally, the Court took into account the severity of the fines imposed on the applicants. In the Court's opinion such severe penalties, viewed against the background of a limited interference with the private life of Mrs A., disclosed a striking disproportion between the competing interests of protection of private life and freedom of expression.   There had therefore been a violation of Article 10 of the Convention.   Selistö   Article 10 of the Convention   The principal issue for the Court was whether the interference with the applicant’s freedom of expression had been “necessary in a democratic society”. In particular the Court had to determine whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities for finding that the interest in protecting X’s reputation outweighed the applicant’s freedom of expression were relevant and sufficient.   The national courts had relied notably on the selective manner in which material was used by the applicant, the fact the X was identifiable and the applicant’s alleged failure to verify the facts.   The Court first noted that to a large degree the national courts had not found that the facts presented in the articles had been erroneous as such. The reporting had been based on accurate and reliable facts. A use of materials which was a too a degree selective could not in itself be regarded as a sufficient and relevant reason for the applicant’s conviction. Moreover at no point had X’s name, age or gender been mentioned in the articles. Even if the content of the articles could have led to his identity being disclosed, it had never been expressly communicated to the general public. As regards the possibility for X to respond to the articles, although the opportunities to do so were somewhat limited, the Court was unable to find that X was not given a chance to defend himself or that the ethics of good journalism had been violated.   The purpose of the applicant’s articles had been to discuss matters of patient safety. The operation in question had been selected as an example illustrating the problems involved. It was often the case that discussion of individual cases was used to highlight a more general problem. The Court could not find that the factual statements contained in the articles were either excessive or misleading. Nor was there any indication that the applicant had acted in bad faith.   The Court did not moreover accept that the limited nature of the fine was decisive as regards the issue of necessity; what was of greater importance was that the journalist had been convicted.   The Court did not find that the undoubted interest of X in protecting his professional reputation was sufficient to outweigh important matters of legitimate public concern. In short, the reasons relied on by the respondent State, although relevant, were not sufficient to show that the interference complained of was “necessary in a democratic” society.   Accordingly, there had been a violation of Article 10 of the Convention.       Judge Sir Nicolas Bratza expressed a dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.   [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.