CASE OF M.P.  v. FINLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. The applicant was born in 1971 and lives in Helsinki. 6. The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child’s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child’s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child’s father. 7. In July 2006 the child’s father initiated custody and contact rights proceedings vis-à-vis his daughter. 8. In August 2006 the Kouvola District Court (käräjäoikeus, tingsrätten) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2007. According to the applicant, the child was often restless and talked strangely after the meetings with her father. 9. On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision. 10. On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights. 11. On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court’s decision. 12. The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter’s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse. 13. On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation. 14. On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more. 15. On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime. 16. After having received information about the conclusion of the pretrial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter. 17. In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pretrial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police. 18. On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child’s father. She also reported the matter to the social workers in Helsinki. 19. On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found. 20. The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre-trial investigation was concluded on 4 May 2008 as there was no appearance of any crime. 21. On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs (Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office (lääninhallitus, länsstyrelsen). 22. On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), asking him to investigate why the police did not hear her child during the pre-trial investigation. 23. On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals. 24. On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year agelimit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant’s case. 25. On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant’s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child. 26. On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime. 27. On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in nonpecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court’s reasoning was the following: “The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “reason to suspect” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl’s somatic status was normal and there were no external signs of sexual abuse. From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually-coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old. On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child’s other, more general symptoms have given sufficient confirmation of her insinuation. When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child’s father] and that its content, being almost of the worst kind, was bound to cause him suffering. ... Ignorance of legal provisions does not eliminatebasis for considering that M.P.’s act could be regarded as manifestly excusable due to a mistake. On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him.” 28. By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court (hovioikeus, hovrätten). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child’s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre-trial investigation. She considered this mistake to be so substantial that the danger to her child’s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008. 29. On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following: “On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [...] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [...] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre-trial investigation into [the child’s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pretrial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.” 30. By letter dated 7 March 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. 31. On 14 December 2011 the Supreme Court refused the applicant leave to appeal. 32. On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him. 33. On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal. 34. The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland) which was declared inadmissible on 17 April 2014. 35. On an unspecified date the applicant asked the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board (Poliisihallitus, Polisstyrelsen). 36. On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre-trial investigation without leaving any issues unclarified.