CASE OF NIKULA v. FINLAND
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
Georg Ress
7. In 1992-93 the applicant appeared as defence counsel in the Kokkola City Court (raastuvanoikeus, rådstuvurätt) in two sets of criminal proceedings against her client I.S. and others. The applicant acted as counsel under the 1973 Cost-Free Proceedings Act (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973) with the City Court's consent. 8. In the 1992 trial the public prosecutor, T., requested that I.S., his brother S.S. and L.O. be temporarily barred from conducting business (liiketoimintakielto, näringsförbud). The request had been triggered by the winding up of various companies which the defendants had owned or in which they had held positions of trust. At a hearing on 4 March 1992 T. argued, inter alia, that regardless of whether S.S. had actually participated in the administration of the companies, he should be barred from conducting business, given his formal membership of their boards of directors. Evidence was heard from the companies' bookkeeper, M.H., who was one of the witnesses. Those proceedings ended with a decision of 9 February 1993 rendered by the Supreme Court (korkein oikeus, högsta domstolen). 9. In the meantime, I.S., S.S., L.O. and M.H. had been questioned as suspects in relation to a complaint lodged by M.S. (the wife of S.S.) alleging that they had, among other things, abused their positions of trust within one of the companies. On 7 December 1992 T. decided not to bring charges against S.S., having found no evidence that he had participated in any meeting of the board at which the funds invested by the complainant had been allocated for purposes to which she had not agreed, or that S.S. had otherwise consented to such allocation. 10. On 2 February 1993 I.S. was charged with aiding and abetting fraud and abusing a position of trust. L.O. was accused, inter alia, of aggravated fraud and fraud, whereas M.H. was charged with abusing a position of trust. The public prosecutor, T., had summoned S.S. to testify but the applicant and the other defence counsel objected to this on behalf of their clients. Before the City Court the applicant read out and handed in a memorial entitled “Role manipulation and unlawful presentation of evidence” (in Finnish, “Roolimanipulointi ja kiellonvastainen todistelu”) in which, among other arguments, she made the following points: “... The indictment seeks to hide the fact that S.S. ... was ... chairman of the board of the company in question. ... The blatant abuse in respect of the presentation of evidence must lead the court to reject such evidence. ... The prosecutor's arrangement shows that he seeks, by means of procedural tactics, to make a witness out of a co-accused so as to support the indictment. In order to prevent the accused from submitting evidence on those points the prosecutor has, in the same case, brought trumped-up charges against a person who would qualify as a witness. ... Such deliberate abuse of discretion on the part of a public authority is highly unusual in a State governed by the rule of law. As regards, in particular, the procedural tactics which the prosecutor has adopted in the present case, namely as many as two instances of role manipulation in one and the same case, I submit that a milder form of such manipulation has been condemned by the Norwegian Supreme Court. That precedent disclosed unlawful behaviour similar to that of the prosecutor in the present case ... The prosecutor has, in this case, committed role manipulation, thereby breaching his official duties and jeopardising legal security ...” 11. T. having denied the above allegations and maintained his request, the City Court rejected the objection of the defence and allowed S.S. to testify. On 23 February 1993 the defendants were convicted. I.S. and L.O. were given suspended prison sentences and fines, and M.H. sentenced to fines. They were all ordered to pay damages and costs. All appealed, I.S. and L.O. arguing, inter alia, that S.S. should not have been heard as a witness. 12. In its judgment of 20 December 1993 the Vaasa Court of Appeal (hovioikeus, hovrätt) upheld the decision to hear S.S. as a witness but acquitted I.S. and M.H. of the charges regarding abuse of a position of trust. They were nonetheless ordered to pay damages to the complainant. 13. M.H. and T. requested leave to appeal to the Supreme Court. Having been invited to comment on T.'s request, the applicant maintained on behalf of I.S. that S.S. should not have been heard as a witness. Leave to appeal was granted to M.H. only. In its decision of 9 March 1995 the Supreme Court set aside the order requiring M.H. to pay damages. 14. T. reported the applicant's statements of 2 February 1993 to the Prosecuting Counsel (kanneviskaali, hovrättsfiskalen) of the Court of Appeal for consideration of possible defamation charges. On 27 December 1993 the Acting Prosecuting Counsel formed the view that the applicant had been guilty of defamation but decided not to indict her, since the offence had been of a minor character. The Acting Prosecuting Counsel gave the following reasons, among others: “The defamation now in question cannot be expected to result in a more severe punishment than a fine. [The applicant] made her aforementioned ... submission in order to prevent the examination of [S.S.] as witness. By acting in this manner [the applicant] attempted to defend her client's interests in the trial. ... In her submission [she] attempted, perhaps in part due to her inexperience, to place ... the case before the City Court in the context of the ... Norwegian precedent and its formulations. The submission was thereby worded quite sharply with the effect of offending T. ..., although [the applicant] was not able to show the requisite factual grounds for the allegations concerning [T.] At the same hearing ... the City Court found no obstacles to examining [S.S.] as a witness. In its reasons the City Court noted that no elements had transpired from the pre-trial record or other material on the basis of which the prosecutor could be seen as having deliberately selected certain persons as the accused in the case. The ... Court of Appeal did not reverse [that] decision of the City Court. In the circumstances the [applicant's offence] has not caused any particularly significant harm to [T.] ...” 15. Using his independent right of private prosecution, T. nevertheless brought criminal proceedings against the applicant in the Court of Appeal. Before the Court of Appeal the applicant argued that, as defence counsel, she had to be afforded far-reaching freedom of expression. Prosecutors and legal counsel were obliged to tolerate criticism to a much wider extent than private individuals. The applicant's statements had been addressed exclusively to the City Court and had been limited to criticising the procedure which T., as prosecutor, had adopted in her client's case. As the City Court had dismissed the applicant's objection to hearing S.S. as a witness, the statements could not qualify as defamatory within the meaning of Chapter 27, Article 2, of the Penal Code (rikoslaki, strafflag). 16. T. argued that the applicant's statements to the City Court on 2 February 1993 were capable of subjecting him to contempt and hampering the performance of his professional duties and his career. He referred to his lengthy service as public prosecutor, to his municipal position of trust and to his chairmanship of the local branch of a political party. 17. On 22 August 1994 the Court of Appeal convicted the applicant of public defamation committed “without better knowledge” (julkinen ei vastoin parempaa tietoa tehty herjaus, offentlig smädelse dock inte emot bättre vetande), i.e. negligent defamation, to be distinguished from public defamation “despite better knowledge”, that is to say, intentionally imputing an offence to T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). The applicant was sentenced to a fine of 4,260 markkas (FIM) (716 euros (EUR)). She was further ordered to pay FIM 3,000 (EUR 505) in damages for the harm suffered by T. and FIM 8,000 (EUR 1,345) for his costs (both sums with 16% interest). Lastly, she was ordered to pay FIM 300 (EUR 50) in costs to the State. The Court of Appeal gave the following reasons, among others: “The obligation of an advocate is to safeguard his or her client's interests within the confines of the law and good advocacy ethics. The requirements relating to an advocate's activities appear in rather general provisions and rules. According to generally recognised principles, an accused must be provided with all necessary guarantees for his or her defence. Similarly, an advocate may request that every aspect of his or her client's case be correctly and properly dealt with by the court. [Counsel] is under a duty to point out the errors and deficiencies which he or she notices. To this end an advocate is free to criticise anything of relevance to the case. Such criticism must nonetheless be appropriate and based on facts. The grounds for the criticism must be carefully considered. ... The manner in which an advocate proceeds is also limited, inter alia by the provisions in Chapter 27 of the Penal Code. In the [present] case it has been established that [the applicant] alleged, in her aforementioned written submission, that [T.] had, in assessing who should be charged in the case, deliberately abused his discretion and thereby breached his official duties. T. was thus accused of an intentional offence in office within the meaning of Chapter 40, Article 10, of the Penal Code. [The applicant's] conduct would ... constitute a criminal offence if her statements were capable of subjecting [T.] to contempt or of hampering the performance of his duties or career. On this point the Court of Appeal notes that the statement was made by a legal practitioner trained as a judge (varatuomari, vicehäradshövding). The statements were made at a public hearing before the City Court. The statement may thus have spread into the public domain. The statements concerning the ... abuse of discretion in breach of official duties may therefore have subjected [T.] to contempt or may have hampered the performance of his duties or his career progress. [T.] had decided not to bring charges against [S.S.] in the absence of evidence sufficient for an indictment. The Court of Appeal notes that no elements have transpired which would lead [it] to believe that [T.'s] aforementioned decision was not based on the appropriate reasons set out in the decision. In its decision made at the same hearing ... the City Court found no obstacle to examining [S.S.] as witness. In its judgment of 20 December 1993 the ... Court of Appeal did not reverse the City Court's decision. On the basis of the charges which [T.] brought against [M.H.] the City Court convicted [him] of having abused a position of trust. In its aforementioned judgment the Court of Appeal ... acquitted [M.H.] but upheld the City Court's decision in respect of his obligation to pay damages. The Court of Appeal notes that in this respect no elements have transpired which would lead [it] to believe that [T.] decided to bring charges against [M.H.] so as to prevent his being examined as a witness. [The behaviour imputed to T.] has not been proved. There is no reason to believe that [the applicant] acted with intent ..., although she did express her criticism in a manner defaming [T.]. In order to defend her client's interests [the applicant] attempted to prevent [S.S.] from being heard as a witness and to put forward elements relating to his credibility. [The applicant] was in principle entitled to criticise the public prosecutor and to voice her suspicion that the prosecutor had acted incorrectly. In the assessment of [the applicant's] guilt no reason has been disclosed for reaching any conclusion other than that she failed to take sufficient care in considering the grounds for her criticism. The Court of Appeal therefore concludes that [the applicant] did not act contrary to her better knowledge. [She] must have realised, however, that her statements were defamatory in nature and were capable of subjecting [T.] to contempt or of hampering the exercise of his official duties or career. ...” 18. Both T. and the applicant appealed to the Supreme Court. On 15 February 1996 (Korkein oikeus 1996:17) the Supreme Court, sitting as a Chamber of five judges with Justice Tulenheimo-Takki holding a casting vote, upheld the Court of Appeal's reasons but set aside the applicant's sentence, considering that her offence had been minor in nature. Accordingly, the fine imposed on her was lifted but her obligation to pay damages and costs was upheld. Justices Krook and Vuori voted in favour of upholding the Court of Appeal's judgment as a whole, whereas Justices Lehtimaja and Portin found that the applicant should be acquitted and relieved of her obligation to pay damages. According to the voting procedure laid down in Chapter 23, Article 4, of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), the judges in favour of imposing a penalty on the applicant were considered to form the majority, and the more lenient of the two views within that majority prevailed. Justice Lehtimaja, whose opinion was joined by Justice Portin, reasoned as follows: “This case concerns, on the one hand, the freedom of speech of the defence lawyer of an accused in criminal proceedings and, on the other hand, the threshold for considering criticism of a public prosecutor's official actions a criminal offence. It is in the nature of a fair trial that counsel for the defence must, if the client's best interests so require, be free to criticise the public prosecutor's official actions without thereby being threatened with punishment. This is considered to be an essential principle of human rights in the Western countries where the rule of law prevails. The ... principle [becomes devoid of meaning] if defence counsel's freedom of expression is excessively restricted in such a situation. Legal provisions which restrict this freedom of expression must therefore be interpreted narrowly. Correspondingly, one can expect a public prosecutor to tolerate even sharp criticism of his or her official actions at a public hearing. This is due to the specific nature of the post of public prosecutor. The act imputed [to the applicant] On the basis of the Court of Appeal's reasoning, I consider that [the applicant] did not have any intention to offend [T.] or to act contrary to her better knowledge. The question ... is therefore whether [she] is guilty of the defamation imputed to her by the Court of Appeal. In the trial in question [the applicant] considered the interests of her client to require that the [prosecution witness] be disqualified from testifying against his brother. To this end [the applicant] stated her suspicion that [T.], in considering whether to press charges, had been guilty of ... role manipulation. [The applicant] considered it necessary to stress, in particular, that such action was, in her opinion, incompatible with Finnish law and therefore in breach of the ... duties of the prosecutor. As her client's defence counsel, [the applicant] had a right to express such opinions and, as a public prosecutor, [T.] was obliged to tolerate such criticism. As a party to the proceedings, [T.] had an opportunity to respond to [the applicant's] statements and dismiss the opposing party's suspicions if he regarded them as groundless. On the other hand, there was no need for [the applicant], in her capacity as defence counsel, to state her opinion as to whether [T.] had possibly committed an offence in office by acting in the alleged manner ... In this respect I consider [the applicant's] statements inappropriate. Constitutive elements of defamation But did [the applicant] commit defamation? Is it enough for the fulfilment of the elements in Chapter 27, Article 2, of the Penal Code, to allege that someone is 'guilty of a specific offence' in the circumstances mentioned in this provision - or is it also required that the alleged offence is capable of subjecting the said person 'to contempt or harming his professional life or career'? The provision is linguistically open to various interpretations. The Court of Appeal has applied the interpretation which is more favourable to the accused by finding that [her] conduct would constitute a criminal offence [only] if her statements were capable of subjecting [T.] to contempt or of harming his professional life or career. I agree with the Court of Appeal's interpretation. Considering the broad definition of this offence, it is not reasonable to consider that any allegation of an offence would suffice to cause ... the injurious consequences mentioned in this provision. In order for the definition of defamation to be satisfied evidence is therefore also required in a given case that ... the allegation ... of an offence did produce an injurious consequence. Assessment of the injurious character of the allegation of an offence It is common knowledge that the role of an accused person's defence counsel includes criticising the prosecutor's decision to bring charges ... This is almost a rule, especially when the charges against counsel's client are denied. It is also known that the language used by counsel may be sharp and counsel's view particularly subjective. The public present at a trial are therefore usually able to adopt a prudent attitude towards the criticism to which the parties subject each other. Neither is all criticism likely to be taken literally even if those who have presented it are legally trained. As regards [T.'s] alleged role manipulation as such, [the applicant] did not state that [T.] had done something he had not done. Instead, she questioned the appropriateness of [his] decisions ... [The applicant] alleged that the actual purpose of [T.'s] actions had not corresponded to the stated grounds for the actions. On that basis [the applicant] made known that she considered [T.'s] official actions unlawful and purposely harmful to her client. Despite their unconditional tone and formulation [the applicant's] statements could be understood more or less as [her] own doubts as to the reasons why [T.] had acted the way he did. Conclusion In the light of the above-mentioned considerations, I do not consider that [the applicant's] allegation that [T.] had committed an offence in office was capable of subjecting [him] to contempt or of harming his professional life or career within the meaning of Chapter 27, Article 2 § 1, of the Penal Code. Therefore I consider it not proved that [the applicant] committed defamation ... I would quash the Court of Appeal's judgment and dismiss the charges and compensation claims against [the applicant]. Costs In so far as court costs are concerned, I consider, despite the outcome of the case, that [the applicant], given the inappropriate tone of her remarks, gave cause for [T.] to initiate proceedings against her. Considering the facts, I nonetheless find ... that both parties should bear their own costs.” 19. According to Chapter 27, Article 2, of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her 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. 20. The current Chapter 24, Article 9 § 2, of the Penal Code, as amended by Law 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 paragraph 1. 21. According to Chapter 15, Article 10a, of the Code of Judicial Procedure, the court may order that an unsuitable legal representative should no longer appear in the case before it. The court may also, on similar grounds, revoke the appointment of counsel instructed under the legal-aid scheme (section 14 of the Cost-Free Proceedings Act). 22. The intervener concluded from its survey of a number of member States of the Council of Europe (i.e. Belgium, Denmark, France, Italy, the Netherlands, Spain, Sweden and the United Kingdom) as well as of certain other States (Australia, Canada and South Africa) that a great majority of them accord a privilege to lawyers for statements they make while representing clients in court. Although the extent and application of such privilege may differ from jurisdiction to jurisdiction, every surveyed State recognises that a lawyer's ability to express himself or herself is closely linked to counsel's obligation to defend the client. The privilege for allegedly defamatory statements allows counsel to argue as effectively as possible, relying even on facts which they cannot be sure are true. For example, in the Netherlands allegations that the prosecutor has abused his or her discretion are regularly made by defence lawyers. Potentially relevant allegations which are entirely unsubstantiated are simply disregarded. 23. To the extent that restrictions are permitted on a lawyer's statements in court, most of the jurisdictions surveyed by Interights tend to favour the use of disciplinary measures over criminal sanctions. In the view of the intervener, this might reflect the position taken by the Court in the context of Article 10, namely that a relatively light criminal sanction may already serve to chill even appropriate and measured criticism (see, for example, the Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239). 24. Where criminal sanctions are permitted in theory, in most of the jurisdictions surveyed by the intervener they are rarely used in practice, and then usually only in extreme circumstances and provided that intent can be shown, as opposed to mere negligence. Even where a lawyer's statements may in principle be subject to restrictions, those are generally imposed only when the statement is not only defamatory but also entirely unrelated to the proceedings or the parties. 25. Furthermore, almost all of the jurisdictions surveyed by the intervener recognise the fundamental difference between the roles of the prosecutor, being the opponent of the accused, and the judge. This distinction generally provides an increased protection for statements that are critical of the prosecutor. 26. It is the intervener's conclusion that in most of the surveyed jurisdictions it is unlikely that a defence lawyer would be criminally prosecuted for having criticised the manner in which a prosecutor is handling a case or for having indicated that the prosecutor has abused his or her discretion. On such facts recourse to criminal proceedings would not be deemed necessary. 27. According to paragraph 20 of the Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), lawyers should enjoy “civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court, tribunal or other legal or administrative authority”. 28. In its Recommendation (2000) 21 the Committee of Ministers of the Council of Europe recommends the governments of Member States to take or reinforce, as the case may be, all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer. For instance, “lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards”. Lawyers should, however, “respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards” (principles I:4 and III:4).