FIRST SECTION
CASE OF M.P. v. FINLAND
(Application no. 36487/12)
JUDGMENT
STRASBOURG
15 December 2016
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
M.P. v. FINLAND JUDGMENT
1
In the case of M.P. v. Finland,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Ledi Bianku,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Robert Spano,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 15 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36487/12) against the
Republic of Finland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two Finnish nationals, Ms M.P. and her minor
daughter E.B. (“the applicants”), on 13 June 2012. The President of the
Section acceded to the applicants’ request not to have their names disclosed
(Rule 47 § 4 of the Rules of Court).
2. The applicants were represented by Ms Helena Molander, a lawyer
practising in Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign
Affairs.
3. The applicant mother alleged, in particular, that her freedom of
expression under Article 10 of the Convention had been violated as she had
been convicted of defamation for having expressed her concerns about her
daughter.
4. On 24 March 2014 the complaint under Article 10 of the Convention
concerning the applicant mother was communicated to the Government and
the remainder of the application, including all complaints concerning the
applicant child, was declared inadmissible pursuant to Rule 54 § 3 of the
Rules of Court. Accordingly, the applicant mother remains the only
applicant in this case.
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M.P. v. FINLAND JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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.
A. First set of proceedings concerning custody and contact rights
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.
B. First involvement of the child welfare authorities and the police
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
M.P. v. FINLAND JUDGMENT
3
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
pre-trial 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 pre-trial 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.
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M.P. v. FINLAND JUDGMENT
C. Further involvement of the child welfare authorities and 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.
D. Administrative complaints
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
age-limit 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.
M.P. v. FINLAND JUDGMENT
5
E. Defamation proceedings
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
non-pecuniary 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
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M.P. v. FINLAND JUDGMENT
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 eliminate the punishability of an act. Taking
into account what has been said above about the circumstances of the case and the
nature of the criminal insinuation, there is no basis 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
pre-trial 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
M.P. v. FINLAND JUDGMENT
7
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.
F. Second set of proceedings concerning custody and contact rights
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.
G. Most recent administrative appeals
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
37. The Finnish Constitution (Suomen perustuslaki, Finlands grundlag,
Act no. 731/1999) provides in relevant parts:
“Article 10 – The right to privacy
Everyone’s private life, honour and the sanctity of the home are guaranteed. ...
...
Article 12 – Freedom of expression and right of access to information
Everyone has the freedom of expression. Freedom of expression entails the right to
express, impart 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. ...”
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M.P. v. FINLAND JUDGMENT
38. Chapter 24, section 9, subsections 1 and 2, of the Penal Code
(rikoslaki, strafflagen, Act no. 531/2000) provided, at the relevant time, as
follows:
“A person who
1) gives false information or makes a false insinuation about another person so that
the act is conducive to causing damage or suffering to that person, or subjecting that
person to contempt, or
2) disparages another person in a manner other than referred to in point 1
shall be convicted of defamation and sentenced to a fine or imprisonment for a
maximum period of six months.
Criticism that is directed at a person’s activities in politics, business, public office,
public position, science, art or in comparable public activity, and which does not
clearly overstep the limits of what can be considered acceptable, does not constitute
defamation as set out in point 2 of paragraph 1.”
39. The above-mentioned provision was amended in 2013 (Act
no. 879/2013). The amended provision entered into force on 1 January 2014
and reads currently as follows:
“A person who
1) spreads false information or a false insinuation of another person so that the act is
conducive to causing damage or suffering to that person, or subjecting that person to
contempt, or
2) disparages another in a manner other than referred to in point 1)
shall be sentenced for defamation to a fine.
Also a person who spreads false information or a false insinuation about a deceased
person, so that the act is conducive to causing suffering to a person to whom the
deceased was particularly close, shall be sentenced for defamation.
Criticism that is directed at a person’s activities in politics, business, public office,
public position, science, art or in comparable public activity and that does not
obviously exceed the limits of propriety does not constitute defamation referred to in
subsection 1, point 2).
Presentation of an expression in the consideration of a matter of general importance
shall also not be considered defamation if its presentation, taking into consideration its
contents, the rights of others and the other circumstances, does not clearly exceed
what can be deemed acceptable.”
40. The relevant provisions of the Child Welfare Act (lastensuojelulaki;
barnskyddslagen, Act no. 683/1983) and the domestic practice are outlined
in the Court’s judgment in Juppala v. Finland, cited above, §§ 19-22.
M.P. v. FINLAND JUDGMENT
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
41. The applicant complained under Article 10 of the Convention of a
violation of her freedom of expression.
42. Article 10 of the Convention reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.”
43. The Government contested that argument.
A. Admissibility
44. The Court notes that the applicant’s complaint under Article 10 of
the Convention is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
45. The applicant argued that she had been convicted on the basis of one
telephone conversation with a social worker on 19 October 2007. She had
been convicted of something that was not a crime in Finland, but a duty.
The Juppala case (see Juppala v. Finland, cited above) should have been
taken into account in the domestic proceedings. The applicant had had an
even greater duty to help her child than the grandmother in the Juppala case
as, according to Finnish law, a parent had a duty to protect a child who was
in their custody. In this case it had been the social authorities themselves
who had made the first report to the police. When it had become clear that
the child was not heard, the applicant had the duty to continue demanding a
better examination of the case. This duty continued as long as there was a
concern and no alternative explanation had been provided for the child’s
symptoms, and no such explanation was ever provided in the present case.
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M.P. v. FINLAND JUDGMENT
The social authorities had been the correct and only authorities to help the
child.
46. The applicant maintained that she had been communicating only
with authorities acting under professional secrecy and that she had been
correct with the child’s father. She could not have committed any crime
simply by seeking help and proper examination of her child’s case, as that
was her duty. She had acted in good faith and on the advice of a social
worker. Therefore the applicant’s right to freedom of expression had been
seriously violated when she was convicted of defamation.
(b) The Government
47. The Government found it uncontested that the applicant’s conviction
for defamation and the liability to pay damages had amounted to an
interference with her right to freedom of expression under Article 10 of the
Convention. The impugned measures had had a basis in domestic law,
namely in Article 12 of the Constitution and Chapter 24, section 9, of the
Penal Code. The interference had thus been “prescribed by law”. The
impugned measures had also pursued the legitimate aim of protecting the
private life and reputation of the child’s father.
48. The Government noted that, according to the Appeal Court, the
applicant had not presented any evidence showing that she had reason to
consider that the information she had disclosed about the child’s father to
the child welfare authorities was true. This was especially so as the
applicant had known that the pre-trial investigation had just been concluded
and that this investigation had not found any evidence to support her
allegations. The pre-trial investigation had been conducted only on the basis
of the applicant’s allegations.
49. The Government argued that the present case differed crucially from
the case Juppala v. Finland. In the latter case the applicant had clearly seen
the child’s bruised body, she had acted in good faith and was thus entitled to
use the reporting system without any potential “chilling effect” of a criminal
prosecution, whereas in the present case the applicant had already used the
reporting system and a careful pre-trial investigation had been concluded in
the matter with no results. The Government maintained that the applicant
could not be considered as having acted in the same kind of good faith as
the applicant in the Juppala case, as there were no veritable signs or
symptoms supporting her allegations. Moreover, the Appeal Court had
examined the case as a whole and taken into account the applicant’s
particular status in sentencing. The national authorities were thus entitled, in
the circumstances of the case, to interfere with the applicant’s right to
freedom of expression and that interference was proportionate and
necessary in a democratic society. There was thus no violation under
Article 10 of the Convention.
M.P. v. FINLAND JUDGMENT
11
2. The Court’s assessment
50. It is common ground between the parties that the applicant’s
conviction constituted an interference with her right to freedom of
expression as guaranteed by Article 10 § 1 of the Convention. Moreover, the
Government argued that the impugned measures were “prescribed by law”
as they had a basis in domestic law, namely in Article 12 of the Constitution
and Chapter 24, section 9, of the Penal Code, and that the interference also
pursued the legitimate aim of protecting the private life and reputation of the
father of the child. The applicant did not submit any observations in this
respect. The Court accepts that the applicant’s criminal conviction was
based on a reasonable interpretation of the Penal Code, and that the
interference was thus “prescribed by law” (see Juppala v. Finland, cited
above, § 40; Nikula v. Finland, no. 31611/96, § 34, ECHR 2002-II;
Selistö v. Finland, no. 56767/00, § 34, 16 November 2004; and Karhuvaara
and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004-X). It also pursued
the legitimate aim of protecting the private life and reputation of the father
of the child.
51. The Court recalls that an interference will be considered “necessary
in a democratic society” for the achievement of a legitimate aim if it
answers a “pressing social need” and, in particular, if it is proportionate to
the legitimate aim pursued and if the reasons adduced by the national
authorities to justify it are “relevant and sufficient”. In its assessment, the
Court has to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10 and,
moreover, that they based themselves on an acceptable assessment of the
relevant facts (see Nikula v. Finland, cited above, § 44). The Court recalls
that the quality of judicial review in respect of the necessity of the measure
is of particular importance in the context of the proportionality assessment
under Article 10 of the Convention (see Animal Defenders International
v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).
The margin of appreciation in this context is measured by reviewing the
extent to which the reasoning of the national courts engages with the general
principles under Article 10 and the extent to which the balance struck
between the competing rights at the domestic level is satisfactory (see
Erla Hlynsdόttir v. Iceland (no. 3), no. 54145/10, § 59, 2 June 2015; and
Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012). In
exercising its supervisory function, the Court must look at the impugned
interference in the light of the case as a whole including, in this case, the
content of the declarations held against the applicant and the context in
which they were made.
52. This case calls into consideration two countervailing interests, each
of which are of high social importance: the need to safeguard children from
abuse by their own parents, and the need to protect parents from
unwarranted interference with their right to respect for their private and
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M.P. v. FINLAND JUDGMENT
family life or the risk of unjustified arrest and prosecution. The first of these
interests involves protection of children as actual or possible victims of
crime. The Court has emphasised that children and other vulnerable
individuals in particular are entitled to State protection, in the form of
effective deterrence, against such serious breaches of personal integrity (see,
mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21-27,
Series A no. 91; Stubbings and Others v. the United Kingdom,
22 October 1996, §§ 62-64, Reports of Judgments and Decisions 1996-IV;
and also the United Nations Convention on the Rights of the Child, Articles
19 and 37). The Court would refer, in particular, to the case of
A. v. the United Kingdom (23 September 1998, § 22, Reports 1998-VI)
where a stepfather had subjected a child to treatment contrary to Article 3
and was acquitted, having argued that the treatment amounted to
“reasonable chastisement”. The Court held in that case that the obligation
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
together with Article 3, required States to take measures designed to ensure
that individuals within their jurisdiction were not subjected to torture or
inhuman or degrading treatment or punishment, including such ill-treatment
administered by private individuals.
53. If the source of the abuse is the parent, the child is at risk from his
primary and natural protector within the privacy of his home. Child abuse is
indeed a challenging form of criminal conduct to combat, because its
existence is difficult to uncover. Babies and young children are unable to
tell, older children are often too frightened. The issue in connection with the
present application is about striking a proper balance between the need to
protect children against the risk of potentially serious harm and the need to
protect a parent against being wrongly suspected of having abused his or her
child.
54. The Court notes that the applicant first contacted the child welfare
authorities and voiced her concerns about the child and her suspicions of
sexual abuse while the parents were engaged in a dispute relating to the
custody and contact rights in respect of the child. Following the applicant’s
first contact in mid-August 2007, the child welfare authorities decided to
report the matter to the police for investigation. A pre-trial investigation was
conducted but it was concluded with the finding that there was no
appearance of any crime. After having been informed of this conclusion, the
applicant again contacted the child welfare authorities on 19 October 2007,
insisting on another investigation. It was in respect of her second appeal to
the authorities to pursue a criminal investigation against the father of her
child that the applicant was later charged and convicted of defamation. The
applicant’s third report regarding suspicions of sexual abuse of her child,
addressed to the police on 18 January 2008, is not the subject of the present
case.
M.P. v. FINLAND JUDGMENT
13
55. The seriousness of child abuse as a social problem requires that
persons who act in good faith (see Juppala v. Finland, cited above, § 42;
and, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77,
ECHR 2008), in what they believe are the best interests of the child, should
not be influenced by the fear of being prosecuted or sued when deciding
whether and when their doubts should be communicated to health care
professionals or social services. There is a delicate and difficult line to tread
between taking action too soon and not taking it soon enough. The duty
toward the child in making these decisions should not be hampered by a risk
of exposure to claims by a distressed parent if the suspicion of abuse proves
unfounded. On the other hand, it is justified that acts motivated by a
personal grievance or antagonism or an expectation of personal advantage
be discouraged, including in the context of disputes relating to the custody
or visiting rights concerning a child.
56. In the Juppala case the Court noted that the possibility to voice a
suspicion of child abuse, formed in good faith, in the context of an
appropriate reporting procedure, should be available to any individual
without the potential “chilling effect” of a criminal conviction or an
obligation to pay compensation for harm suffered or costs incurred (see
Juppala v. Finland, cited above, § 43). In this connection, the Court notes
and welcomes the amendment made by the Finnish authorities in Chapter
24, section 9, of the Penal Code by which the possibility of imposing
imprisonment for defamation was removed from penal sanctions available
under that provision (see paragraph 39 above).
57. In the present case, the Court cannot overlook the fact that according
to the findings of the domestic courts, the applicant did not – following the
closure of the pre-trial investigation that had been carried out on the basis of
her first report of suspicions of abuse – have a sufficient factual basis for
allegations of criminal conduct by her child’s father. Nor can the Court
disregard the fact that the applicant’s allegations had been raised while a
dispute over the custody and visiting rights of the child was pending before
the courts. While the Court is not in a position to enter into any assessment
of its own regarding the facts of the case, nor is it its role to do so, or to
speculate about the motives involved in the events that preceded the
defamation proceedings which are the subject of the applicant’s complaint,
the Court notes the following circumstances in particular.
58. Firstly, the criminal charge against the applicant was based solely on
statements made by her in a single telephone conversation with an official
of the child welfare services, who herself was subject to obligations arising
from professional secrecy. Secondly, while the charge and conviction were
based on an unsubstantiated allegation that the child was at risk of being
sexually abused by the father, the evidence as recorded in the judgment of
the District Court does confirm, inter alia, that the applicant had expressed
14
M.P. v. FINLAND JUDGMENT
the concern that the pre-trial investigation had been inadequate as the child
herself had not been interviewed because of her young age.
59. The Court must look not only at the content of the interference
complained but also at the context in which it was made (see Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR 2004-XI).
Article 10 of the Convention protects not only the substance of the ideas and
information expressed but also the form in which they are conveyed (see
Nikula v. Finland, cited above, § 46). In the present case, the context of the
interference with the applicant’s Article 10 rights was the confidential
telephone conversation with a public official. The Court does not find it
irrelevant, as did the Appeal Court, that the insinuation was made to a
public official who was bound by confidentiality but, on the contrary, finds
that this fact is relevant to the assessment of the proportionality of the
interference (see Yankov v. Bulgaria, no. 39084/97, § 141, ECHR 2003-XII
(extracts)).
60. Moreover, the Court does not find that bringing criminal charges
against the applicant and convicting her for defamation was a course of
action that can be considered proportionate with a view to the requirements
of Article 10 of the Convention. Although the applicant was only punished
by a fine, the Court is unable to accept in the present case that there was any
“pressing social need” to interfere with the applicant’s freedom of
expression by imposing a criminal sanction on her.
61. Under these circumstances, the Court finds that the reasons relied on
by the domestic courts were not relevant and sufficient to show that in the
present case the interference complained of was “necessary in a democratic
society”. Having regard to all the foregoing factors, and taking into account
the margin of appreciation afforded to the State in this area, the Court
considers that the domestic authorities failed to strike a fair balance between
the competing interests at stake.
62. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
64. The applicant claimed 43,182.49 euros (EUR) in respect of
pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.
M.P. v. FINLAND JUDGMENT
15
65. The Government considered that the pecuniary damage listed by the
applicant as “other costs which were the direct consequences of the case” in
the amount of EUR 35,180.63 should be rejected in full whereas the
remaining pecuniary damage of EUR 8,001.86 plus interest could be
accepted. As to the non-pecuniary damage, the Government considered that
compensation in the special circumstances of the present case should not
exceed the amount of EUR 2,500.
66. The Court finds that there is a causal link between the violation
found and the pecuniary damage alleged in the amount of EUR 8,001.86; it
therefore accepts this claim and awards the applicant EUR 8,001.86 as
compensation for pecuniary damage. As to non-pecuniary damage, it
awards the applicant EUR 5,000.
B. Costs and expenses
67. The applicants also claimed EUR 19,040.63 for the costs and
expenses incurred before the domestic courts and EUR 19,500 for those
incurred before the Court.
68. The Government considered that, as far as the costs and expenses
incurred before the domestic courts were concerned, the applicant’s claim
should be rejected in full by virtue of Rule 60 of the Rules of Court due to
the lack of any itemisation. As to the costs and expenses incurred before the
Court, the Government estimated the applicant’s claims as excessive as to
quantum and considered that reasonable compensation should not exceed
EUR 3,900 (inclusive of value-added tax).
69. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court rejects the claim for costs and
expenses in the domestic proceedings for the lack of itemisation and
considers it reasonable to award the sum of EUR 6,000 (inclusive of
value-added tax) for the proceedings before the Court.
C. Default interest
70. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
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M.P. v. FINLAND JUDGMENT
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 10 of the Convention
admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 8,001.86 (eight thousand and one euros and eighty-six
cents), plus any tax that may be chargeable, in respect of pecuniary
damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii) EUR 6,000 (six thousand euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 December 2016, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener
Deputy Registrar
Mirjana Lazarova Trajkovska
President