CASE OF SOINI AND OTHERS v. FINLAND
No violation of Art. 8;Violation of Art. 10;No violation of Art. 6 or 13;Non-pecuniary damage - financial awards;Costs and expenses awards - Convention proceedings
Nicolas Bratza
6. The applicants are Finnish citizens. Their dates of birth and places of residence are set out in the Annex. 7. On 25 November 1995 a group of young people organised a sit-in in the premises of a department store in Helsinki, Oy Stockmann Ab (presently Oyj Stockmann Abp; henceforth “Stockmann”), criticising it for selling fur coats and thereby participating in cruelty to animals. Around the same time various pamphlets and posters had appeared in Helsinki, criticising the fur trade in general and Stockmann in particular. The group had to be forcibly removed from the store. 8. In March 1996 Stockmann requested a pre-trial investigation into “the distribution to the public of printed matters purporting to be produced on the company’s behalf but which had not been commissioned by [it]”. Should the police find that a criminal offence had been committed, Stockmann requested that the matter be brought to the attention of the public prosecutor. The request was registered as a matter of suspected public defamation. 9. In the ensuing pre-trial investigation 36 persons, including the applicants, were heard as suspects in respect of the offence of public defamation. 10. On 11 April 1996 the police conducted a search at the home of Mr Miettinen, relying on chapter 4, section 1, and chapter 5, section 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987). According to the minutes, the search was carried out for the purpose of an investigation into malicious damage (vahingonteko, skadegörelse) of which his room mates – A.L. (not an applicant) and Ms Karjalainen – had been suspected. The police seized pamphlets critical of Stockmann’s sale of fur products as well as letters related to Mr Miettinen’s participation in an association of anti-fur activists. 11. On 13 June 1996 the police searched the homes of Ms Mikola and Ms Soini. According to the minutes, the searches were carried out “for other investigation purposes”. The police seized pamphlets and documents related to Ms Mikola’s participation in the same association of anti-fur activists. At the home of Ms Soini the police seized similar pamphlets, diaries from the years 1994-1995 and a telephone note book. 12. On 20 June 1996 the police returned to Ms Mikola some of the seized material, retaining eight pamphlets stating, inter alia: “Stockmann supports trading in carcasses” (Stocka [Stockmann] tukee raatokauppaa). 13. On 26 June 1996 the police returned two of Ms Soini’s diaries, keeping a third one until 9 September 1996. 14. On 18 October 1996 the District Court (käräjäoikeus, tingsrätten) of Helsinki maintained the seizures of Ms Mikola’s and Ms Soini’s materials until 31 December 1996. The seizures were later extended until 31 January 1997. 15. On 20 November 1996 the pre-trial investigation ended with a signed report. On 10 January 1997 applicants Sami and Sanna Seppilä, Soini, Uosukainen, Karjalainen, Särkisilta, Kaihovaara, Pelkonen, Riska, Karlstedt, Salonen, Miettinen and Mikola were charged with a violation of Stockmann’s domiciliary peace (kotirauhan rikkominen, hemfridsbrott) and a violation of the Police Act, both committed on 25 November 1995. All except applicants Sami Seppilä, Uosukainen, Karlstedt and Miettinen had been minors at the time of the offence. 16. At the same time, applicants Soini, Therman and Mustonen were charged with having defamed Stockmann in public while being minors. Applicants Uosukainen and Karjalainen were charged with the same offence but were no longer minors when committing the offence, namely between the summer of 1995 and the summer of 1996. In the alternative, all except Karjalainen were charged with common nuisance. 17. Mr Purmonen was charged with incitement to one or the other of those offences. 18. In addition, applicants Sami Seppilä, Soini, Särkisilta and Salonen were charged with some further offences. 19. On 2 April 1997 Ms Soini requested that the seizure of her possessions be lifted. The District Court having maintained the seizures, she appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki. 20. On 15 May 1997 the police lifted the seizure and returned the remaining material to Ms Soini and Ms Mikola. On 17 July 1997 the Court of Appeal found that since the police had already returned the material seized from Ms Soini it was not necessary to examine her appeal. 21. Meanwhile, on 18 June 1997 applicants Sanna Seppilä, Soini, Uosukainen, Särkisilta, Kaihovaara, Pelkonen, Riska, Karlstedt, Salonen, Miettinen and Mikola were convicted of violation of Stockmann’s domiciliary peace and sentenced to forty, fifty or sixty days’ conditional imprisonment respectively. Mr Sami Seppilä was likewise convicted – except on one count not relevant to this case – and given a longer conditional prison sentence coupled with a fine. 22. Applicants Purmonen, Therman and Mustonen were acquitted of all charges. 23. On 22 June 1999 the Court of Appeal reversed the District Court’s judgment by acquitting all twelve convicted applicants in so far as they had been found guilty of violating domiciliary peace. The court considered that Stockmann’s shop premises, being accessible to the public, could not be considered a domicile for the purposes of the relevant provision of the Penal Code. While upholding these applicants’ convictions of one or several other offences the court reduced their sentences to fines. 24. Article 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as amended by Act no. 969/1995 and in force at the relevant time, provided, in so far as relevant, as follows: “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. ...” 25. The same provision appears in the current Constitution of 2000 (731/1999, section 12). 26. According to chapter 27 of the Penal Code (rikoslaki, strafflagen), as in force at the relevant time, a person alleging, either contrary to his or her better knowledge or without better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. If the defamation took place in public or, for example, by means of printed matter, the sentence could be increased. The injured party was required to report the offence before the public prosecutor might bring charges (sections 1-2 and 8). 27. The current chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1. Whereas only a natural person may be considered a victim of defamation, legal persons may be afforded indirect protection as in some cases defamation directed at a legal person may also be considered to concern individuals employed by that legal person (see Government Bill no. 184/1999, p. 34). 28. The 1919 Act on Freedom of the Press (painovapauslaki, tryckfrihetslagen 1/1919), as in force at the relevant time, confirmed the right to disseminate printed matters without prior censorship (section 1). “Printed matter” meant any writing which had been reproduced with a printing machine or by some other comparable means (section 2). 29. The Ministry of Justice was to monitor compliance with the Act and could order that charges be brought and that specific printed matter be seized (sections 40-42). In practice the Ministry was deemed competent to order that charges be brought only if they could be brought by the public prosecutor of his or her own motion, and not when the injured party was required to report the offence for the purpose of having charges brought (Report of the Committee considering new legislation on the freedom of the media, no. 1997:3, p.136). A public prosecutor or a police commander could, of his or her own motion, order the seizure of printed matter without a prior order by the Ministry of Justice. The Ministry had to be informed of such seizure within 24 hours. 30. If charges could not be brought on the prosecutor’s own initiative, the seizure could only be ordered on the request of the allegedly injured party. After charges had been brought the court examining the case had exclusive competence in respect of the seizures (section 42). 31. The Ministry of Justice was required, within a matter of days, to submit any seizure order for review by a court. The court had to either confirm or revoke the order within four days. If that time-limit was not respected the seizure expired. If charges were not brought within fourteen days from the court’s confirmation of the seizure, the court would pronounce the expiry of the seizure (sections 44-45). 32. The Freedom of the Press Act was repealed as from 1 January 2004 by the Act on the Exercise of Freedom of Expression in Mass Media (laki sananvapauden käyttämisestä joukkoviestimissä, lag om yttrandefrihet i masskommunikation 460/2003). It contains a single section (section 22) on the seizure of publications. The Government Proposal which gave the reasons for the Act stated, with regard to this section, that the existing provisions of the Freedom of the Press Act on seizures could be regarded as wholly unnecessary. The Coercive Measures Act passed in 1987 contained, according to the Proposal, all the necessary provisions concerning the authority to order seizures, the legal conditions, the procedure and the right to appeal for seizures. It was therefore sufficient that the new Act contained merely a reference to the Coercive Measures Act, in addition to clarifying, with regard to the proportionality rule in that Act, that the seizure of all publications meant for distribution in any given case could only be ordered if it could be assumed that the court would later order them to be confiscated. The new Act therefore served to clarify the relation between legislative provisions on publications and the Coercive Measures Act. 33. Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in a criminal investigation no one’s rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily. 34. Chapter 7, section 1 a, of the Coercive Measures Act provides that such measures may only be used where they can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation, the degree of interference with the rights of the suspect or other persons subject to the measures as well as in light of any other pertinent circumstances. 35. By chapter 5, section 1 of the Coercive Measures Act, a search of premises may be carried out if there is reason to suspect that an offence has been committed which carries a maximum punishment of imprisonment exceeding six months. 36. By Chapter 4, section 1 of the Coercive Measures Act, an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings, has been removed from someone by means of an offence or is likely to be confiscated by a court order. According to section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure, the court may extend it at the request of a police officer competent to issue arrest warrants. 37. Section 43, subsection 2 of the Pre-Trial Investigation Act provides that when it has been decided that the case will not be submitted to the prosecutor, that decision shall without delay be notified to the persons who have been questioned as parties, unless this is deemed unnecessary.