Communicated on 24 March 2014
FOURTH SECTION
Application no. 36487/12
M.P. and E.B.
against Finland
lodged on 13 June 2012
STATEMENT OF FACTS
The applicants, Ms M.P. and her daughter E.B., a minor, are Finnish nationals who were born in 1971 and 2004 respectively and live in Helsinki.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicant mother moved in with her partner in 2003 and their daughter was born in November 2004. In spring 2006 the applicant mother noticed that 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 behaved violently. In May 2006 the applicant mother and her daughter left the child’s father.
First set of proceedings concerning custody and contact rights
In July 2006 the child’s father initiated custody and contact rights proceedings vis-à-vis his daughter.
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 mother, the child was often restless and talked strangely after the meetings with her father.
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.
On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights.
On 4 September 2007 the Kouvola District Court ordered that the child was to be in the joint custody of both parents. 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.
First involvement of the child welfare authorities and the police
The applicant mother 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 having 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 mother contacted a child psychiatrist and the child welfare authorities in Helsinki who started to investigate the matter.
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.
On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. After some discussion between the medical authorities and the police, it was decided not to hear the child, although she was capable of expressing herself, due to the fact that she was under four years old. A physical examination was carried out but it did not reveal any external signs of abuse. The investigation was concluded on 15 October 2007 as there was no appearance of any crime.
The child welfare authorities advised the applicant mother to contact a social worker, which she did. In a telephone conversation of 19 October 2007 the applicant mother expressed to the social worker her concern that her child continued to be at risk of being subjected to sexual abuse.
Second involvement of the child welfare authorities and the police
On 18 January 2008 the applicant mother made a second report to the child welfare authorities and to the police 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.
The Kouvola Police Department started to investigate the matter. The child was not heard although she was already three years old at the time. As the applicant mother had taken the child to a doctor on 25 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.
Administrative complaints
On 18 February 2008 the applicant mother lodged a complaint with the National Authority for Medicolegal 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).
On 18 February 2008 the applicant mother 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.
On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police. He did not have any competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals.
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 applicant child had only been two years and ten months old at the time of the first police investigation. No new physical examination was carried out during the second pre-trial investigation as such an examination had been carried out on 25 January 2008. The Office decided to take no action in the applicants’ case.
Defamation proceedings
On 13 December 2007 the father of the child asked the police to investigate whether the applicant mother had defamed him during her confidential telephone conversation with the social worker on 19 October 2007.
On 17 February 2009 the public prosecutor pressed charges against the applicant mother and the child’s grandmother for having expressed their concerns about the child in confidential conversations with the social worker after the police had investigated the matter and found no appearance of any crime.
On 11 September 2009 the Helsinki District Court convicted the applicant mother of defamation and sentenced her to 45 day-fines, amounting to 630 euros. She was ordered to pay the father 1,000 euros in non-pecuniary compensation and his costs and expenses amounting to 1,885.66 euros. The Court found that the insinuation about the sexual abuse had been made after the police had decided to stop investigating the matter as no crime could be established. The physical examination of the child had found no signs of abuse. The child had met her father unsupervised only three times, out of which one meeting had taken place in an amusement park. Even if the child had said what it was claimed she had said, the applicant mother had had no grounds to consider that her insinuation was true. It was irrelevant that the insinuation related to an earlier child welfare report and was made to a public official who was bound by confidentiality. The applicant mother must have understood that the insinuation was almost of the worst kind and was bound to cause suffering to the child’s father. It could not be considered that she was mistaken about the content of the law or the advice given to her.
By letter dated 12 October 2009 the applicant mother 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 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.
On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. It found, like the District Court, that it was irrelevant that the insinuation had been made to a public official who was bound by confidentiality. Even if there were issues of child protection involved, a conviction for defamation was not in contradiction with the freedom of expression and the protection of fundamental rights.
By letter dated 7 March 2011 the applicant mother appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court.
On 14 December 2011 the Supreme Court refused the applicant leave to appeal.
Second set of proceedings concerning custody and contact rights
On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him.
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 mother leave to appeal.
The applicant mother has complained about these proceedings to the Court (application no. 71785/12 M.P. and E.B. v. Finland).
Most recent administrative appeals
On an unspecified date the applicant mother 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).
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.
B. Relevant domestic law
The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:
“Section 10 – The right to privacy
Everyone’s private life, honour and the sanctity of the home are guaranteed. ...
...
Section 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. ...”
Chapter 24, section 9, subsections 1 and 2, of the Penal Code (rikoslaki, strafflagen, Act no. 531/2000) provide:
“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.”
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 of 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 notification 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 leaves room for interpretation of how certain the person giving notification 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.
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 is growing up and the suspected offence carries a maximum penalty of at least two years’ imprisonment.
COMPLAINT
The applicant mother complains under Article 10 of the Convention about violation of her freedom of expression when she was convicted of defamation for having expressed her concerns about her child during a confidential conversation with a public official.
QUESTION TO THE PARTIES
Has there been an interference with the applicant mother’s freedom of expression, in particular her right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
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