CASE OF MARIAPORI v. FINLAND
Violation of Art. 6-1;Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award
Anne E. Niemi;David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza
6. The applicant was born in 1943 and lives in Muurola. 7. In December 1997 the applicant, a tax expert, was the defendant's witness in a case where the public prosecutor had brought charges for tax fraud. The evidence in the case was based, inter alia, on a tax inspection report drawn up by tax inspectors A. and B. The applicant provided her own calculation of the defendant's taxable income. The defendant was convicted of tax fraud and the judgment became final in June 1999. 8. The difference between the applicant's estimation of the defendant's taxable income and the estimation given by the tax inspectors was about 2.5 million Finnish Marks (FIM; about 494,000 euros). When asked by the defendant's counsel whether the difference could be explained by the tax inspectors' negligence or professional incompetence, the applicant answered, under oath: “No, to my mind they have done it intentionally.” When the defendant's counsel asked whether it was by incompetence or intentionally that the tax inspectors had found that the taxable income was FIM 1,435,000 instead of FIM 49,815, she replied: “Intentionally.” The public prosecutor asked: “Do you say under oath that the tax inspectors have intentionally made mistakes in this matter?” The applicant replied: “Yes, the figures cannot be explained otherwise. The tax inspectors have not a single ground to arrive at these figures.” 9. The court proceedings as well as the applicant's statements were reported in several newspapers but the tax inspectors' names were not mentioned in any of them. Moreover, the court proceedings were open to the public and the applicant's witness statements were recorded word for word in the minutes, to which anyone had access. 10. In 1998 the applicant published a book about taxation in which the above-mentioned court case was cited. It was mentioned that “[i]n any event, the senior tax inspector [A.] committed perjury fully knowingly and intentionally. But why not as her husband is the public prosecutor [X.]. who works for [name of the office]”. Five thousand copies of the book were printed, of which about a thousand copies had been given away by the end of August 1999. 11. On 18 November 1999 the applicant was questioned by the police for the first time. The applicant gave her closing statement in the pre-trial investigation on 27 January 2000. 12. On 8 December 2000 the public prosecutor brought charges against the applicant for aggravated defamation. Tax inspectors A. and B. joined the charges and extended them to cover other statements made by her during the above-mentioned tax fraud proceedings. The summons was served on the applicant on 11 February 2001. 13. On 15 March 2001 the applicant requested the Raahe District Court (käräjäoikeus, tingsrätten) to extend the time-limit for her reply until 30 September 2001. The applicant informed the District Court that she would request the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to conduct an investigation and that she would also request the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) to annul certain decisions of administrative courts underlying her case. The District Court extended the time-limit for the reply until 30 September 2001. 14. On 26 September 2001 the applicant requested the District Court to grant another prolongation of the time-limit for her reply as the above-mentioned criminal investigation and the annulment proceedings had not yet been concluded. The District Court extended the time-limit for the reply until 28 February 2002. 15. The applicant did not give a written reply within the time-limit but requested the District Court not to hold an oral hearing before the Supreme Administrative Court had decided on the annulment of the above-mentioned taxation cases. 16. On 2 October 2003 the District Court received the decision of the Supreme Administrative Court concerning a request to annul previous taxation decisions. The District Court held an oral hearing in the defamation case in May 2004. 17. On 26 July 2004 the District Court convicted the applicant, as far as the statements made in the book were concerned, of aggravated defamation and sentenced her to four months' conditional imprisonment. Moreover, she was ordered to pay 5,000 euros to tax inspector A. in compensation. The court found that, even though the applicant might have been right about the dysfunctions in the company taxation system, she should not have criticised the civil servants in question in a defamatory manner. As far as the statements made during the tax fraud proceedings were concerned, the court found them to constitute defamation but not aggravated defamation. However, as the charges for defamation had been brought too late she could not be convicted on that count. Despite the prescription, the related compensation claims could be examined and the applicant was ordered to pay in total 4,000 euros in compensation to the tax inspectors A. and B. for mental suffering under both counts. The District Court declared all parts of the case file secret for fifteen years except for the applicable legal provisions and the conclusions. 18. On 27 September 2004 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), claiming, inter alia, that her rights under Articles 6 and 10 of the Convention had been violated and that the act in question had not constituted aggravated defamation. She also requested the Appeal Court not to start preparing the case before the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier – “the Council”) had either given a statement on the matter or notified the court that no statement would be made. 19. On 14 December 2004 the Council notified the Appeal Court that it would not give a statement on the matter. The Appeal Court held an oral hearing in the case in January 2006. 20. On 25 April 2006 the Appeal Court upheld, by a majority, the District Court's judgment. It found that the interference with the applicant's right to freedom of expression had been necessary and proportionate. However, one of the justices found in his dissenting opinion that the applicant should be freed from the obligation to pay compensation to A. and B. under both counts as the applicant's criticism did not exceed the limits of what was acceptable for civil servants to endure in the exercise of their official duties. As to the length of the proceedings, the court did not find it so excessive as to justify mitigating or waiving the applicant's sentence. Finally, the Appeal Court quashed the District Court's decision to declare the case file secret. 21. On 26 June 2006 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal relied on before the Appeal Court. 22. On 2 March 2007 the Supreme Court refused leave to appeal. 23. According to Chapter 3 (515/2003), section 2, of the Penal Code (rikoslaki, strafflagen), the law which was in force at the time an offence was committed applies to that offence. However, if a law other than the one in force at the time of the commission of the offence is in force at the time of conviction, the new law applies if its application leads to a more lenient result. 24. Chapter 27, section 1, of the Penal Code, which was in force at the time when the events took place, read as follows: ”A person alleging, albeit not contrary to his or her better knowledge, that someone has committed an offence or other act which might make this person an object of contempt or might affect his or her trade or success, or who spreads a lie or a false insinuation about someone, is to be convicted of defamation and sentenced to imprisonment for at least one month and at most one year or to a fine of at least one hundred marks. If defamation is public or in a printed publication, in writing or through pictures, which the accused distributes or had distributed, the punishment is imprisonment of at least two months and at most two years or a fine of at least two hundred marks.” 25. Chapter 24 (531/2000), section 9, of the Penal Code, which was in force at the time of conviction, read as follows: “A person who (1) spreads false information or 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) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph (1), shall be sentenced for defamation to a fine or to imprisonment for at most six months. Criticism that is directed at a person's activities in politics, business, public office, public position, science, art or in a comparable public position and which does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs (1) and (2).” 26. Chapter 24, section 10, of the Penal Code provides that if, in the defamation referred to in section 9, the offence is committed through the use of the mass media or otherwise by making the information or insinuation available to a large number of people, the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for at most two years. 27. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.