CASE OF JUPPALA v. FINLAND
Violation of Art. 10;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1929 and lives in Ylöjärvi. 6. On 20 July 2000 she took her daughter's son to a doctor. The boy was three years old at the time. 7. According to the doctor's report, the applicant said that she had noticed a bruise on the boy's back which might have been caused by a blow, and that his behaviour had been abnormal since he had visited his father, T. The applicant had strong suspicions that the injuries were consistent with physical violence. Furthermore, it was written in the report that the applicant had informed the doctor that the boy had said that the bruise had been caused by a punch. The applicant further stated that in January 2000 she had noticed signs of violence for the first time, but that T. had explained that the boy had fallen down the stairs. The doctor wrote in his report that the bruise noted on the boy's back was consistent with a punch, thereby supporting the boy's account, given also to the doctor, that he had been hit by his father. 8. Later the same day, the doctor reported the alleged violence to the child welfare authorities, although the applicant had objected to a report being made. 9. On 17 August 2000 T. requested the police to investigate whether the applicant had committed an offence by alleging that he had hit his son. He maintained that he had never struck the boy. On 22 August 2000 he further requested the police to investigate whether the applicant had committed an offence, such as deprivation of liberty, by taking the boy to a doctor. 10. On 26 April 2001 the public prosecutor preferred charges against the applicant for defamation without better knowledge (ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande). According to the charge, the applicant had given information to the doctor implying that T. had struck his son. The doctor had been given to understand that T. had struck the boy on several occasions, most recently during the previous weekend. The applicant did not have reasonable grounds to support her allegation. On 21 May 2001 T. joined the proceedings and claimed compensation from the applicant for non-pecuniary damage amounting to 10,000 Finnish marks (FIM, about 1,682 euros (EUR)) and reimbursement of his legal expenses. 11. On 24 August 2001 the Tampere District Court (käräjäoikeus, tingsrätten) held an oral hearing. In its judgment the court held that it remained unclear whether the applicant had implied that the boy had been hit by his father or whether the doctor's report merely recorded his own impression based on his discussion with the applicant and the child. Applying the principle in dubio pro reo, the court rejected the charge. The presiding judge, however, dissented, finding the applicant guilty of defamation without better knowledge. She noted that, taking the facts as presented, there were no reasonable grounds to support the belief that T. had struck the boy. She further found that the boy's own statement could not as such be considered a reasonable ground, especially given the fact that it was not known whether the applicant had discussed the bruise with him before visiting the doctor. 12. T. appealed to the Turku Court of Appeal (hovioikeus, hovrätten). On 20 February 2002, after an oral hearing, the Court of Appeal overturned the District Court's judgment and convicted the applicant of defamation committed without better knowledge. No fines or other penalties were imposed, but the applicant was ordered to pay compensation for non-pecuniary damage amounting to EUR 504.56 and legal costs of EUR 2,861.11. It reasoned: “At the hearing [the applicant] and [the doctor] have essentially given the same account of the events as before the District Court. [The applicant] has, however, stated that having noticed the bruise on the child's back on the evening before the visit to the doctor's, she asked the boy where it had come from and he said that his father had hit him. According to the doctor, the applicant had provided the preliminary data, which he had first written down on paper. Later they had been recorded in the medical report based on his dictation. He had dictated the information immediately after the applicant and the child had left the room. The report did not contain any conclusions reached by the doctor himself. On the basis of the doctor's testimony and the case record, it has been proved that the applicant intentionally, albeit without better knowledge, said that [the father] was guilty of having struck his three-year-old son in such a way that she in fact gave the doctor to understand that the father had struck his son during the weekend preceding 20 July 2000. However, the Court of Appeal finds that it has not been shown that the applicant gave the doctor to understand that the father had struck his son at other times. As described above, the applicant had discussed the bruise with the boy. The boy may also have heard the applicant make her preliminary statement at the doctor's before the doctor spoke to him. Having regard to this and the boy's age, the mere fact that he told the doctor that his father had hit him cannot be considered to be significant enough to constitute reasonable grounds for the allegation. Nor has the applicant presented any other such reasons for the allegation on the basis of which she could be considered to have had reasonable cause to believe her insinuation to be true. On the above grounds, the Court of Appeal considers that the applicant is guilty of defamation without better knowledge. According to the doctor, the applicant had been worried about the child's condition and he considered that the visit had been justified. Having regard to the circumstances, it was forgivable that the applicant, in whose care the child had been, had not thoroughly weighed what she had told the doctor. For these reasons the Court of Appeal does not impose a sentence, in accordance with Chapter 3, Article 5, subsection 3 (2) [of the Penal Code].” 13. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). She argued that the right to freedom of expression was violated if a person could not rely on the account of a child who had visible signs of injury or discuss his or her own impressions of the facts with a doctor, who was bound by professional secrecy, without being afraid of later being found guilty of defamation. 14. On 17 December 2002 the Supreme Court refused leave to appeal. 15. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), provided: “Everyone has 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 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.” The same provision appears in Article 12 of the current Constitution of 2000 (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999). 16. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone's right to private life is guaranteed. 17. Chapter 27, article 2(1), of the Penal Code (rikoslaki, strafflagen; Act no. 908/1974, as in force until 1 October 2000), provided that a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation and sentenced to a fine or imprisonment for a maximum term of six months, unless he or she could show reasonable grounds for the allegation. For the conduct to be intentional, the offender had to be aware of the fact that the defamatory allegations might subject the person concerned to contempt, or harm his or her profession or career. In cases where the offender did not understand the defamatory nature of the conduct, it has not been considered intentional, but the fact that the offender has been mistaken about the truth of the defamatory allegation has not altered the intentional nature of his or her conduct. Only in cases where the offender has been able adequately to prove the truth of his or her allegations has it been possible to free him or her from liability. In one of its precedents (KKO 2006:10), the Supreme Court held that a person had committed defamation when she had failed to verify the truthfulness of the information she had provided when requesting a criminal investigation by the police and reporting to the social welfare authorities under the Child Welfare Act her suspicion that another person had committed sexual and other offences. 18. Under the terms of Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), damages may be awarded for the distress arising from an offence against someone's liberty, honour or domestic peace or from another comparable offence. 19. Section 40 of the Child Welfare Act (lastensuojelulaki; barnskyddslagen, Act no. 683/1983), in force until 1 January 2008, provided that if, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or the church learned about a child in apparent need of family-oriented or individual child welfare measures, he or she had to notify the social welfare board without delay. The provision has been interpreted to mean that any confidentiality obligation is superseded by the duty to notify. The wording “apparent need of child welfare measures” referred to section 12, which set a clearly lower threshold for child welfare measures than the threshold set in section 16 for taking a child into public care. Even a less than serious risk to the child's health or development warrants notification to the social welfare board. The word “apparent” is used in order to encourage notifications also in cases where there exists no full evidence of or certainty about the existence of such a risk. When a child welfare official receives notification, he or she must verify the facts and assess whether support measures are needed. The wording has left room for interpretation of how certain the notifier must be of the child's need for child welfare measures. In particular, there has been uncertainty about whether the mere suspicion of such a need suffices for notifying the authorities. 20. According to the Government Bill (HE 252/2006 vp) for the enactment of the new Child Welfare Act (Act no. 417/2007, which entered into force on 1 January 2008), in order to guarantee children's safety the threshold for making a child welfare notification under Section 25 should not be excessively high. If a person considering making such a notification has difficulties in assessing whether his or her concern about the child is sufficient to justify notifying the authorities, he or she may, if necessary, consult the social welfare authorities, for instance, without communicating the child's name to them. The provision expressly provides that any confidentiality obligation is superseded by the duty to notify. Section 25(6) provides that the child welfare authorities must report to the police any case where there is good reason to suspect that a sex offence, homicide or bodily injury has been committed on a child in the environment in which he or she was growing up and the suspected offence carries a maximum penalty of at least two years' imprisonment. 21. As a rule, the child concerned is entitled to be informed of the notifier's identity. In practice, however, cases exist where disclosure of the identity of a private person making such a notification would be particularly harmful to the child's best interests or the notifier's safety, for example. Authorities need not provide a party with information on identity if the conditions mentioned in section 11 of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta; lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) are fulfilled: a party shall not have the right of access to a document if such access would be contrary to a very important public interest, the interest of a minor or some other very important private interest. According to the Government Bill (HE 30/1998 vp), the best interests of a child may justify protecting the notifier's identity on the basis of an overall consideration of the circumstances of each individual case. As an example, the Government Bill mentions the situation where the notifier is a person close to the child, for instance a grandparent, and to disclose his or her identity would break the child's relationship with an adult important to his or her welfare. Disclosure of the notifier's identity may, in individual cases, also be in conflict with the public interest if providing the information might defeat the purpose of child welfare measures. 22. In September 2005 the Ombudsman for Children (lapsivaltuutettu, barnombudsmannen) took up her duties. The Ombudsman is entrusted with the task of promoting the best interests and rights of the child in general administration, social policy and legislation. The Ombudsman may issue recommendations, guidelines and advice but she cannot receive individual complaints. The Ombudsman is an independent authority who works in liaison with the Ministry of Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet). The Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) retains her mandate regarding children and continues to act on individual complaints addressed to her. 23. According to Article 19 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991) – ratified by all members of the Council of Europe – provides: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 24. In its concluding observations (CRC/C/15/Add. 272) of 20 October 2005 on the third periodic report of Finland (CRC/C/129/Add.5) the United Nations Committee on the Rights of the Child shared the concern of the Parliamentary Ombudsman of Finland that violence against children and sexual abuse within families were among the most serious obstacles to the full implementation of children's rights in Finland. In the light of Article 19 of the Convention, the Committee recommended that Finland, inter alia, strengthen awareness-raising and education campaigns with the involvement of children in order to prevent and combat all forms of child abuse and also strengthen measures to encourage reporting of instances of child abuse, including for children in alternative care, and to prosecute the perpetrators of these acts.