Sexual abuse
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. ...” 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. 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. 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. 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 201 5; 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 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. 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 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. 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.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the Finnish authorities had not struck a fair balance between the need to protect the applicant’s daughter against the risk of potentially serious harm and the need to protect the father against being wrongly suspected of child abuse. Indeed, it had been disproportionate to pursue criminal charges against the applicant and convict her of defamation in the context of her case, namely a confidential telephone conversation between her and a social worker.