CASE OF SELISTO v. FINLAND
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicant was born in 1941 and lives in Vaasa, Finland. 8. The applicant is a journalist at the regional daily Pohjalainen which is published in Vaasa. In two articles published in January and February 1996 she described the allegedly unprofessional behaviour of an unnamed surgeon, “X”, which allegedly had caused the death of a patient in the Seinäjoki Central Hospital on 7 December 1992. The patient's top rib had been pressing on her artery, thereby hampering the blood flow in her left arm which would occasionally go numb. The surgery had consisted of shortening the top rib by 5-8 centimetres. Complications had arisen after the rib had been shortened and the patient was established to have died from the bursting of her subclavian vein and the blood flow into her pleural cavity. 9. The patient's widower, Mr Haapalainen, had filed a criminal complaint against X and another surgeon who had assisted during the operation. The National Medico-Legal Board (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) had not found it possible to establish at what stage of her operation Mrs Haapalainen had suffered the injury leading to her death. Consequently, no causal link could be established between the injury and the conduct of either of the two surgeons. 10. The Central Criminal Police had conducted a pre-trial investigation into the death. In April 1994 the Vaasa County Prosecutor had decided not to press charges against X, as there was no evidence that he was guilty either of an offence in office caused by negligence or of involuntary manslaughter. The prosecutor had reasoned, inter alia, as follows: “... From the point of view of criminal law it must be examined whether the subclavian vein burst as a result of conduct of which someone may be held guilty and whether errors were committed during the after-care. ... The [expert] opinions have not found that the subclavian vein burst as a result of maltreatment or negligence attributable to [X] or the other operating surgeon. ... [The pre-trial record contains] a number of statements concerning [X's] possible alcohol consumption. ... In respect of the day of the operation the information is contradictory. ... Therefore there is insufficient evidence to find that [X] was under the influence of alcohol while operating on Mrs Haapalainen and that such influence affected his ability to carry out his duties. ... Nor has it been possible to determine whether [X's] shaking hands impacted in any significant way on the conduct of his surgery. ...” 11. The applicant's first article of 4 January 1996 bore the title “If only I could get a good grip on life again” (Kun saisi vielä joskus elämästä kunnolla kiinni). It contained an interview with Mr Haapalainen. The text accompanying his picture read as follows: “How is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood – is it not a fact that pilots only get to manoeuvre a plane when they are absolutely sober, wonders Jorma Haapalainen, who lost his wife.” The introductory text on the front page bore the title: “How to survive all of this? (Miten tästä kaikesta selviää?). It read as follows: “Jorma Haapalainen, a father of two in Old Vaasa is trying to get a grip on his life again. Three years ago the wet Independence Day of a Seinäjoki surgeon cost the life of [Mr Haapalainen's] wife. – Whose is the responsibility, asks Jorma.” The front page also carried a picture of the couple. 12. On 9 January 1996 Pohjalainen published a second article by the applicant entitled: “A position of responsibility never goes with alcohol” (Vastuullinen työ ja alkoholi eivät koskaan sovi yhteen). It contained interviews with the Chief Physician of the Helsinki University Hospital and a Chief Controller of Finnair and discussed the need for surgeons and pilots to be sober and also otherwise in an appropriate condition in order to perform their tasks. The article made no reference to the previous article, nor did it mention Mr or Mrs Haapalainen or X 13. A third article by the applicant – published on 27 February 1996 – was entitled “The case of Eeva did teach us something” (Jotakin Eevan tapaus sentään opetti) and made reference to her article of 4 January 1996. It read, inter alia, as follows: “[The article of 4 January] raised the question of patient safety: how was it possible that a relatively young woman in good shape died from routine surgery. The pre-trial records speak, among other things, of the wrong form of collegiality. ...” Under the subheadings “We were concerned for our patients” and “Complications arose after the surgeries” the article cited four extracts from statements by hospital staff heard during the pre-trial investigation. The extracts read, inter alia as follows: “'Surgeon X has been the specialist doctor on the ward for two years and a half. Soon after he came to work here alcohol-related problems occurred. Often he had a visible hangover, which showed in his not being neatly dressed, in his reddish and swollen face, in his shaking hands and in his breath which smelled freshly of alcohol.' 'We were concerned for the patients on whom surgeon X was operating. The Monday mornings were the worst, when [his] hands were also shaking the most. We would inform the other doctors on the ward of our observations, mainly Dr Y and Dr Z. In particular before a more important surgery we would ask another doctor to attend it. On many occasions Dr Y and Dr Z would attend because we had so requested.' 'The patients operated on by surgeon X have suffered from more post-operative complications. The patients have had bleeding. ...' 'Apparently patients have also made their own observations: I remember the case of a patient – due to arrive for an operation – who enquired who was going to operate on him. Since no surgeon had yet been designated, the patient informed us he would not come at all, unless Dr Z would perform the surgery. After the incident on 7 December 1992 we have been receiving many telephone calls like this one ...' These unpolished statements can be found in the pre-trial record drawn up by the Vaasa branch of the Central Criminal Police. [The record] is a public document and may therefore be cited in this newspaper. ...” Under a subheading entitled “Dubious appointment” (Valinta hiersi) the article described certain hesitations which had preceded X's appointment in 1990. Under a subheading entitled “The best interests of the patient seem to have been forgotten” (Potilaan paras taisi unohtua) the article continued as follows: “The pre-trial records clearly reflect the collegiality within the medical team, as shown in a wish to cover up a colleague's clear problem. ... A nurse who attended the round [preceding Mrs Haapalainen's operation] attempted to remedy the situation: 'During the round surgeon X came over to my left side. Then I noticed that he was clearly drunk. ... I tried to establish eye contact with the other doctors in order to indicate [my concern] to them. I got no such opportunity. I even tried to have one of the two other doctors stay behind after the round but they had already gone off to the coffee room.' ... The pre-trial record gives the impression that the memory of either of the two [surgeons] is failing. Even the Board for Patient Injuries arrive[d] at the conclusion that no one [could] be considered guilty, though, sadly, the patient died. Judging from [an X-ray] picture, the piece of bone [osteophyte] which remained inside [Mrs Haapalainen] after the operation was at any rate so sharp that it could have been fatal in itself even at a later stage. ...” The article of 27 February 1996 then continued with statements by chief physicians and chief surgeons of four central university hospitals, essentially reassuring the reader that a surgeon who was drunk, ill or just tired would not be allowed to operate. Finally, the article contained a statement by the Chief Physician of the Seinäjoki Hospital “who at the time took a rather humane, even though strict approach”: “When more serious problems started occurring in surgeon X's work, we established another parallel position for a surgeon specialised in the same field, and things started working well. After [Mrs Haapalainen's] death, surgeon X was prohibited from operating for two years. In the beginning when he came to work he had to perform a breathalyser test. – Now surgeon X is the physician responsible for one of the wards and occasionally assists during surgery. Everything has been going well: even his hands are no longer shaking.” The article was illustrated with a drawing depicting a seemingly intoxicated surgeon using a pen to mark where to cut open the patient's stomach. 14. The public prosecutor, joined by X, charged the applicant before the Vaasa District Court (käräjäoikeus, tingsrätt) on two counts of intentional defamation. In the article of 4 January 1996 she had defamed X “without better knowledge” (ei vastoin parempaa tietoa, icke emot bättre vetande). In the article of 27 February 1996 she had defamed X “despite better knowledge” (vastoin parempaa tietoa, emot bättre vetande), that is to say by imputing an offence to him whilst knowing that he had not committed one. 15. The editor-in-chief of Pohjalainen, Mr Elenius, was charged with negligent abuse of the freedom of the press (painovapauden tuottamuksellinen väärinkäyttö, vållande till missbruk av yttrandefriheten) within the meaning of section 32 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslag 1/1919). The prosecution argued that, regardless of the fact that he had become aware of the possibility that the applicant's article of 4 January 1996 might have defamed X and of the fact that the applicant was intending to write a further article, he had failed to supervise the publication of the applicant's article of 27 February 1996 by demanding that the article be approved by him. 16. The applicant denied both charges, arguing that X could not have been identified on the basis of her articles and that she had not even been aware of his identity when writing her first article. That article had concentrated on describing Mr Haapalainen's feelings as the surviving widower, whereas the article of 27 February 1996 had discussed patient safety. She had quoted from official documents and her articles had not forced X to close his private practice, as alleged by him. Mr Elenius also denied the charges against him, stating inter alia that after the first article had been published he had offered to publish a response by X. No such response had been forthcoming. The articles had been based on various sources and official documents accessible to the public. Moreover, the press was entitled to deal with the activities of a public hospital and patient security within such institutions. 17. On 14 September 1998 the District Court, relying on chapter 27, section 1, of the Penal Code (rikoslaki, strafflag) as in force at the relevant time, convicted the applicant of defamation committed “despite better knowledge” and by using a printed matter (painotuotteen kautta vastoin parempaa tietoa tehty herjaus, smädelse genom tryckalster emot bättre vetande). The conviction was grounded only on her article of 27 February 1996, whereas she was acquitted of defamation committed “without better knowledge” by means of her article of 4 January 1996. She was sentenced to 25 daily income-based fines at the rate of 166 Finnish Marks (FIM) (corresponding to 27.90 euros (EUR)), totalling FIM 4.150 (EUR 698). 18. Mr Elenius was convicted as charged and sentenced to 12 daily fines at the rate of FIM 333 (EUR 56), totalling FIM 3,996 (EUR 672). 19. The defendants were ordered to reimburse jointly a witness fee in the amount of FIM 685.90 (EUR 115.36) as well as the complainant's legal costs in the amount of FIM 20,276 (EUR 3,410.20). 20. In examining the charges against the applicant as based on her article of 4 January 1996, the District Court took note of the banner headline and picture texts as well as of a third statement appearing in the text and which found it strange that nobody had intervened to prevent the surgeon from conducting the operation, even though everyone must have seen in what condition he was. The last-mentioned statement and the picture text had to be understood as having been expressed by Mr Haapalainen. The article had contained an allegation that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen and that this had led to her death, without specifying in any detail why. The District Court further found that as the article of 4 January 1996 had contained a statement to the effect that the surgeon had been prohibited from conducting further operations, it had given the reader the impression that he or she had been punished for some sort of breach of official duties. 21. Turning to the article of 27 February 1996, the District Court noted that it had contained a reference to the first one and had asked how it was possible that a relatively young woman in good physical condition could die as a result of a routine surgery. The article had then cited statements from the pre-trial record which had discussed the surgeon's alcohol problem and the attitude of hospitals to that problem generally. Moreover, although the National Medico-Legal Board had been of the opinion that no one could be considered guilty of Mrs Haapalainen's death, the osteophyte which had remained in her body after the operation could have been fatal at any later stage. The article of 27 February 1996 had given the reader the impression that the surgeon had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen. The final statement in that article – to the effect that “surgeon X was now doing fine” – strengthened the impression that his or her alcohol problem had been acute at the time of the operation in question. Even though the article's reference to a sharp osteophyte had been somewhat misleading in light of the National Medico-Legal Board's opinion, this article had not taken any position as to the cause of Mrs Haapalainen's death. The District Court further found that even though X could not have been identified on the basis of the first article, the article of 27 February 1996 did render him identifiable to his potential clients in the Seinäjoki area. 22. Considering the fact that the articles had been published in a daily with an interval of some six weeks between them, the applicant's possible guilt had to be determined in respect of each of the articles. Her first article had been based solely on information provided by Mr Haapalainen, although already then she had been aware both that a police investigation had been conducted into the suspected maltreatment and that the public prosecutor had decided not to bring charges against the operating surgeon. Subsequently, but before writing her article of 27 February 1996, she had obtained from the office of the Central Criminal Police the complete pre-trial investigation record, the opinion of the National Medico-Legal Board and the County Prosecutor's decision. 23. In elaborating on the applicant's possible guilt the court reasoned as follows: “The court acknowledges the freedom of the press to report critically on hospitals and, among other issues, on any alcohol abuse that might have been established in such an institution. A critical reviewer must nevertheless bear in mind that his or her statements may amount to criminal defamation. The readership has the right to expect that the facts forming the basis of an article have been verified and that any erroneous piece of information has been corrected. The persons dealt with in the articles are entitled to demand that they be based on correct facts and a person who has been criticised must be given the right to respond. These principles are also to be found in the ethical guidelines adopted within the [journalistic] profession. Ms Selistö's conduct does not meet the aforementioned criteria. The surgery performed by [X] has been carefully scrutinised without any error [on his part] having been established. Regardless of this, Ms Selistö's article [of 27 February 1996] contains a groundless allegation that the surgeon conducted an operation in a drunken state or while suffering from a hangover. When writing her article [of 27 February 1996] Ms Selistö had become aware that it was capable of subjecting the surgeon who had operated Mrs Haapalainen to contempt and of damaging his livelihood. The article [of 27 February 1996] contains many direct quotations from the pre-trial record ... which had been made public – in particular from the statements of a nurse. The court does not find that this renders Ms Selistö's conduct less reprehensible. The large pre-trial investigation material contains elements pro and contra and in the overall assessment, for example in the County Prosecutor's reasons, the statements of the nurse in question have not been given any weight. Ms Selistö selected only those elements that supported her [own] opinion without clearly stating that the National Medico-Legal Board had provided a reasoned opinion and that the County Prosecutor had made a reasoned decision not to bring charges. In the District Court's view the statements of the nurse arguably could have been used in an article discussing, at a general level, the alcohol problems existing in hospitals. In the article now in question the nurse's statements have been reported together with the death of Mrs Haapalainen. In the Supreme Court's precedent no. 1971 II 77 the defendants were convicted of defamation for not having checked the veracity of information contained in a circular before dispatching it. The District Court finds that Ms Selistö had no reasonable cause to believe that the allegations contained in the article [of 27 February 1996] were true. [She] could and should have verified the facts of the story. [Her] negligence in this respect is attributable to her as an intentional offence. ...” 24. On 26 May 1999 the Vaasa Court of Appeal (hovioikeus, hovrätt), after a re-hearing, found the applicant guilty of continued defamation “despite better knowledge” and by using a printed matter. Her sentence was increased to 50 daily fines, totalling FIM 8,300 (EUR 1,396). Mr Elenius was likewise found guilty of negligent abuse of the freedom of the press and his sentence was increased to 25 daily fines, totalling FIM 8,325 (EUR 1,400). 25. The appellate court considered that the allegation against X which had appeared in the articles had been particularly serious, had defamed his honour fundamentally and had diminished his social status and professional prospects. The articles had been visibly published in a mass medium, where they had been given much print space. In light of the general sentencing practice, the defendants' conduct as well as the nature and seriousness of the defaming statement, the sentences inflicted by the District Court had been too lenient. 26. The appellate court considered that the applicant's articles had been so linked together, both by their substance and by the local circumstances they had dealt with, that the two alleged forms of defamation had to be considered as one single act. The court reasoned, inter alia, as follows: “Ms Selistö and Mr Elenius have argued that the subject of patient safety which had been discussed, in particular, in the article of 27 February 1996 is such an important issue in society that the press must be entitled to express even strong criticism without being prevented from doing so by the criminal law provisions on defamation. [They] have further argued that they had strong and plausible grounds for believing that the information published in the articles had been truthful. Public health care is a societal issue of such magnitude as to entitle the press to express criticism. Given his position as a practising surgeon in a public hospital, [X's] activities were of such public-office nature that he had to accept even strong criticism of his behaviour. That criticism nevertheless had to be appropriate and based on facts. A mass medium may not always be able to obtain a confirmation of the absolute veracity of information to be published. The information to be published must at any rate be sufficiently grounded and all negative allegations or allegations directed against a specific person which may be defamatory when published, must be examined critically. Confirmation of the veracity of the allegations should as far as possible be sought from more than one source. The more serious and hurtful the criticism, the stronger the duty to have the truthfulness of information confirmed. ... The information gleaned from the interview with Mr Haapalainen and the elements selected from the pre-trial investigation record, all of which supported the view that [X's] conduct had been reprehensible, was not such reliable information as to provide Ms Selistö with sufficient grounds for the allegations contained in her article of 27 February 1996 and for the tone thereof. In addition, Ms Selistö has conceded that at the time of writing that article she had been aware of the conclusion reached by the National Medico-Legal Board in its opinion as well as of the fact that [X] had not been charged. Ms Selistö nonetheless failed to verify in detail the terms of [the Board's] opinion as well as of the outcome of the pre-trial investigation, even though that could easily have been done. In these circumstances Ms Selistö must be found to have accused, in the articles of 4 January and 27 February 1996, a person identifiable as [X] of an offence as well as of reprehensible conduct, without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful. [X] was not given the possibility of presenting his views in respect of either article. ... ... Even though [X] was not named in the articles, the information stated therein was so detailed that [he] could nevertheless be recognised as the surgeon whom the articles had concerned. ...” 27. On 18 October 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused Ms Selistö and Mr Elenius leave to appeal. 28. On 22 March 2001 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) responded to a petition by Mr Haapalainen. She noted, inter alia, that the National Medico-Legal Board had initiated an inquiry into X's professional conduct in the beginning of 1994. He had been prohibited from conducting surgeries until September 1995, when he had been found capable of resuming his work as a surgeon. As for the County Prosecutor's decision not to press charges against X the Deputy Ombudsman found that a conclusion to the contrary would have been more justified as suspicions concerning gross maltreatment should preferably be examined by a court of law. She stated that this was not tantamount to a finding that the County Prosecutor had overstepped his margin of discretion in breach of the law or his duties. In any case the legal successors of Mrs Haapalainen had enjoyed an independent right to bring private prosecution proceedings. The case had been investigated as suspected manslaughter, for which any criminal proceedings had been time-barred already by the time of the petition. While the Deputy Ombudsman still had the right to bring charges for aggravated manslaughter, she concluded that this was no longer appropriate. 29. Article 8, subsection 1 (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be secured. This provision corresponds to Article 10 of the Constitution of 2000 (perustuslaki, grundlagen; Act 731/1999 which entered into force on 1 March 2000). 30. Article 10 of the Constitution stipulated the following: “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. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act. Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” The same provision appears in the current Constitution of 2000 (section 12). 31. According to chapter 27, section 1, of the Penal Code, as in force at the relevant time, a person alleging, 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. If the defamation took place in public or, for example, by means of a printed matter, the sentence could be increased. Under chapter 27, section 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. 32. 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.