CEDH · PRESS;GENERAL;ENG — 21 mars 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .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 } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     158   21.3.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF NIKULA v. FINLAND   In a judgment [1] 1 (available only in English) delivered at Strasbourg on Thursday 21 March 2002 in the case of Nikula v. Finland (application no. 31611/96), the European Court of Human Rights held, by five votes to two, 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 applicant (by five votes to two) 5,042 euros (EUR) for non-pecuniary damage and, unanimously, EUR 1,900 for pecuniary damage and EUR 6,500 for costs and expenses.   1.     Principal facts   Anne Nikula, a Finnish national born in 1962, is a lawyer living in Helsinki. In 1992-3 she acted as defence counsel in two sets of criminal proceedings before Kokkola City Court concerning the winding-up of companies, in which her client was charged with aiding and abetting in fraud and abusing a position of trust. A former co-suspect was summoned by the public prosecutor to testify. The applicant objected and prepared a memorandum in which she denounced the tactics of the public prosecutor as constituting “manipulation and unlawful presentation of evidence”. Her objection was rejected by the City Court, which dealt with the case at first instance, and her client was eventually convicted.   The prosecutor subsequently initiated criminal proceedings against the applicant for defamation in the Court of Appeal. On 22 August 1994 she was convicted of defamation “without better knowledge”, i.e. merely expressing one’s opinion about someone’s behaviour and not imputing an offence whilst knowing that it has not been committed. A fine was imposed and she was ordered to pay damages to the prosecutor and costs to the State. Both the applicant and the prosecutor appealed to the Supreme Court, which upheld the Court of Appeal’s reasons but waived the fine, considering that the offence was minor; the obligation to pay damages and costs was, however, confirmed.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 20 May 1996 and transmitted to the Court on 1 November 1998. The case was allocated to the then Fourth Section of the Court which declared the application partly admissible on 30 November 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Antonio Pastor Ridruejo (Spanish), Lucius Caflisch [2] (Swiss), Ireneu Cabral Barreto (Portuguese), Volodymyr Butkevych (Ukrainian), Nina Vajić (Croatian), Matti Pellonpää (Finnish), judges , and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [3]   Complaint   The applicant complains under Article 10.   Decision of the Court   Article 10 The Court observed that the limits of acceptable criticism might in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. It could not be said, however, that civil servants knowingly laid themselves open to close scrutiny of their every word and deed to the same extent as politicians and that they should therefore be treated on an equal footing with the latter when it came to criticism of their actions. On the contrary, it might prove necessary to protect civil servants from offensive and abusive verbal attacks when on duty.   The present applicant was convicted for having criticised a prosecutor for decisions taken in his capacity as a party to criminal proceedings in which the applicant was defending one of the accused. It was true that the applicant accused prosecutor T. of unlawful conduct, but this criticism was directed at the prosecution strategy purportedly chosen by T., that is to say, the two specific decisions which he had taken prior to the trial and which, in the applicant’s view, constituted “role manipulation ... breaching his official duties”. Although some of the terms were inappropriate, her criticism was strictly limited to T.’s performance as prosecutor in the case against the applicant’s client, as distinct from criticism focusing on T.’s general professional or other qualities. In that procedural context T. had to tolerate very considerable   criticism by the applicant in her capacity as defence counsel. The Court noted, moreover, that the applicant’s submissions were confined to the court room, as opposed to criticism against a judge or a prosecutor voiced in, for instance, the media.   Nor could the Court find that the applicant’s criticism of the prosecutor, being of a procedural character, amounted to personal insult.   The Court further reiterated that, even if the applicant was not a member of the Bar and therefore not subject to its disciplinary proceedings, she was nonetheless subject to supervision and direction by the trial court. There was no indication that prosecutor T. requested the presiding judge to react to the applicant’s criticism in any other way than by deciding on the procedural objection of the defence as to hearing the prosecution witness in question. The City Court indeed limited itself to dismissing that objection. Still, the presiding judge could have interrupted the applicant’s pleadings and rebuked her even in the absence of a request to that end from the prosecutor. The City Court could even have revoked her appointment as counsel under the legal-aid scheme or excluded her as counsel in the trial. In this context the Court stressed that the role of the courts and the presiding judge was to direct proceedings in a manner such as to ensure the proper conduct of the parties and above all the fairness of the trial – rather than leaving examination of the appropriateness of a party’s statements in the court room to subsequent proceedings.   It was true that, following the private prosecution initiated by prosecutor T., the applicant was convicted merely of negligent defamation. It was likewise relevant that the Supreme Court waived her sentence, considering the offence to have been minor in nature. Even if the fine imposed on her was therefore lifted, her obligation to pay damages and costs remained.   Even so, the threat of an ex post facto review of counsel’s criticism of another party to criminal proceedings – which the public prosecutor doubtless must be considered to be – is difficult to reconcile with defence counsel’s duty to defend their clients’ interests zealously. It followed that it should be primarily for counsel themselves, subject to supervision by the bench, to assess the relevance and usefulness of a defence argument without being influenced by the potential “chilling effect” of even a relatively light criminal sanction or an obligation to pay compensation for harm suffered or costs incurred.   It was therefore only in exceptional cases that restriction – even by way of a lenient criminal sanction – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society. Both the Acting Prosecuting Counsel’s decision not to bring charges against the applicant and the minority opinion of the Supreme Court suggest that the national authorities were also far from unanimous as to the existence of sufficient reasons for the interference now in question. In the Court’s view such reasons had not been shown to exist and the restriction on Ms   Nikula’s freedom of expression therefore failed to answer any “pressing social need”. The Court therefore concluded that Article 10 had been violated in that the Supreme Court’s judgment upholding the applicant’s conviction and ordering her to pay damages and costs was not proportionate to the legitimate aim sought to be achieved.     Judges Pastor Ridruejo and Caflisch 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 Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. 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] .     Judge elected in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.