KALLIOLA AND OTHERS v. FINLAND
Inadmissible
Georg Ress
The applicants, Messrs Jouko Kalliola , Harri Nääppä, Vesa Repo, Riku Roimu and Timo Mäkinen are Finnish nationals, born in 1967, 1963, 1963, 1964 and 1959 respectively. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 March 1993 early in the morning, the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), reinforced by a special Karhu group of the Helsinki Police and in co-operation with armed forces and the Border Guards, made a search in a clubhouse of the motorcycle club Overkill MC. The search was intended to apprehend certain persons suspected of aggravated assault. Five members were caught during the search. The president of the club was apprehended later. The police also seized several weapons at the clubhouse. It proved later that they all were permissible and legal, except one which was useless and not a gun at all. Officer P. from the National Bureau of Investigation was in charge of the investigation. After the search P. gave interviews. His statements were widely spread in the media by the press and a TV channel. P. had also been assigned to be responsible for making any announcements to the media. In the evening of 3 March 1993 a Finnish TV channel had a report about the search, in which P. was interviewed. To a reporter’s question as to what type of offences members of the club had been found guilty of, P. stated that the police had earlier registered to their records the members in question and that they had been convicted of aggravated drug offences and assaults. Between 4 and 9 March 1993 several newspaper articles were published, where a similar statement was quoted. The applicants have made several complaints to various authorities. On 10 March 1993 they complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). In its statement of 31 May 1993 to the Deputy Parliamentary Ombudsman the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) observed, inter alia, the following: “The search carried out by the police on the premises of the motorcycle club received a lot of public attention. Soon after the search the National Bureau of Investigation informed the mass media of the criminal background of the members, and of the activities of the club. An article published in Helsingin Sanomat on 5 March 1993 (under the heading ‘Two motorcycle club members arrested’) directly quoted an interview with P. According to the newspaper, P. had said that ‘the members of the club had been convicted of narcotics offences and assaults, including robberies’. According to [the applicants], the information given by the police was incorrect. [The applicants] attached extracts from their criminal records, of which only one contained an indication of an offence, to their complaint to the Deputy Parliamentary Ombudsman. According to P., the police did not tell the mass media that the applicants had been convicted of narcotics offences, but it was mentioned that another motorcycle club, Hell’s Angels, had been involved in selling narcotics. The information was given from an international point of view, with reference to public information given by the Interpol. The police shall be prudent in giving information to the public on the background of persons suspected of an offence. Any labelling of suspects shall be avoided. In the Ministry’s opinion, the information given by the National Bureau of Investigation indeed gave the public an image that the said members of the motorcycle club had committed various offences. In this respect the public information was not appropriate, as far as the criminal background was concerned.” On 2 July 1993 the applicants made a request of pre-trial investigation to the Deputy Parliamentary Ombudsman and on 31 August 1993 to the Police Department of the Ministry of the Interior. On 18 November 1993 the applicants complained to the Parliamentary Ombudsman, arguing that the police neglected their duty as they did not respond as required in Sections 2 and 6 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag) The applicants made a complaint also to the Council for Mass Media (julkisen sanan neuvosto, opinionsnämnden för massmedier) which, on 10 November 1993, found that the TV channel and one of the newspapers had failed to comply with good journalistic practice when reporting on the events concerning the motorcycle club. On 14 January 1994 the Deputy Parliamentary Ombudsman stated that, on the basis of the documents, she did not find anything that would require her measures. She noted, however, the following in respect of the treatment of the suspects during the pre-trial investigation: “It was mentioned by the mass media that the relevant members of Overkill MC had been convicted of narcotics offences and assaults. According to [the applicants], the police had given incorrect information on those members of the motorcycle club. There is no evidence that the police had deliberately given incorrect information on the members of the motorcycle club. However, it is worth observing that the telephone interview with P. on 4 March 1993 easily gave the impression that members of Overkill MC had been convicted of narcotics offences and assaults.” The Deputy Parliamentary Ombudsman concluded in this respect that authorities and public officials must be especially careful when informing the public for example of matters relating to criminal investigations and suspects. P. had been careless when giving information on the search of the premises of Overkill MC and on related matters.” P. was informed of her opinion. On 23 March 1994 the applicants instituted criminal proceedings against P. who was charged with libel and violation of his official duty on account of his statements. The applicants requested that P. and the Finnish Government be ordered to pay compensation in the amount of FIM 100,000 with interest to each applicant. They argued that they had been subjected to public interest since the search. The applicants had been labelled as having committed offences they had never committed. According to the applicants, P. had been the most active one to give statements to the media and had specially named Mr Mäkinen to the journalists. P. denied all the charges as well as the applicants’ claim for compensation. He stated that he had not been active but only answered questions presented by reporters. Before the search he had prepared a press release in which the name of the club or names of its members were not mentioned. According to P., he or the police had not had any advance information about the members of the club. The police had monitored the clubhouse and assumed, on the basis of the number of people visiting the house, that the number of the members was greater than that established later. On 5 October 1994 after four hearings at which several witnesses were heard, the District Court (käräjäoikeus, tingsrätten) of Helsinki rejected all the applicants’ claims and acquitted P., basing itself on P.’s statements and on statements given by several witnesses heard during the hearings. The District Court found as follows: “The District Court finds that P., by acting in the way described above, has not deliberately or of carelessness or lack of caution made himself guilty of a violation of official duties, when informing the public of the pre-trial investigation, so that his statements would have subjected [the applicants] to suspicion or that he would have unnecessarily caused them damage and harm.” It appears from the judgment that P. had mentioned the name of applicant Mäkinen when asked by a journalist about persons whose detention on remand would be requested. The applicants appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki and requested an oral hearing. On 27 June 1996 the Court of Appeal refused the applicants’ appeal, without a hearing, and upheld the District Court’s judgement, finding as follows: “[The applicants] have considered that P. clearly identified Overkill MC in his statements concerning the present case, and thus his allegations included in the statements directly referred to this club. According to [the applicants], Overkill MC, which was a non-registered association, had 13 members at the relevant time. However, the police had reason to believe that the club consisted of a considerably larger number of persons, inter alia, because there had been large numbers of people on the club premises and in events organised by the club. The statements given by P. reveal that he meant a considerably wider circle of people than [the applicants] or other members of Overkill MC named as such by the club. Nor did P. name any persons in his statements. The identification of club members has only been possible on the basis of distinctive marks. Those distinctive marks were not widely known among the public at the relevant time. The Court of Appeal considers that P. did not deliberately allege that [the applicants], in particular, had committed the offence in question or other despicable acts. Nor did the articles clearly indicate which parts of the text were directly based on the statements of P. and which parts were based on the reporter’s own interpretations of those statements or on information received from other sources. On these grounds and for the reasons given by the District Court, the Court of Appeal finds that there is no reason to alter the judgment of the District Court as to the merits.” The Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal on 9 December 1996. According to Section 7 (2) of the Criminal Investigations Act (449/1987), the suspect must be presumed not guilty in a criminal investigation. According to Section 8 (1) of the Criminal Investigations Act, in a criminal investigation, the rights of no one must be infringed more than what is necessary for the achievement of the purpose of the criminal investigation. Furthermore, according to Section 8 (2), a criminal investigation must be carried out so that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. According to Section 49 of the Criminal Investigations Act, any public information on a criminal investigation must be given in a manner which does not subject anyone to undue suspicion or cause unnecessary harm or inconvenience to anyone. Under Section 9 of the Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; 575/1998), the person in charge of the investigations and his superior, or another official ordered by the superior, must have the right to make information concerning the investigation public. Section 21 of the Constitution of Finland (731/1999), under the heading Protection under the law, provides the following: “Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.” According to Chapter 17 (571/1948), Section 1 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), the plaintiff in a criminal law case must prove the facts that support his/her claim. The defendant must be presumed innocent until proved guilty. Although it may be in the interests of the defendant to submit counter-evidence in support of his or her innocence, he/ she has no obligation to do so. The prosecutor bears the burden of proof. In case there is reasonable doubt as to the guilt, the case must be decided in favour of the defendant. An important way of obtaining evidence in a criminal law case, apart from hearing outsiders as witnesses, is to freely examine the defendant and the plaintiff for the purpose of establishing the facts of the case. According to Chapter 17, Section 2 of the Code of Judicial Procedure, after having carefully evaluated all the facts that have been presented, the court must decide what is to be regarded as the truth in the case. According to Chapter 11, Section 4 of the Criminal Proceedings Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; 689/1997) a judgment must be reasoned. The statement of reasons must indicate on what facts and legal arguments the judgment is based. It must further be indicated on what grounds a fact has been proved or has failed to be proved.