Information Note on the Court’s case-law 40
March 2002
Nikula v. Finland - 31611/96
Judgment 21.3.2002 [Section IV]
Article 10
Article 10-1
Freedom of expression
Defamation proceedings brought by prosecutor against defence counsel: violation
Facts: The applicant acted as defence counsel in criminal proceedings against her client, I.S., and two other accused. The prosecutor decided not to bring charges against I.S.’s brother but summoned him to testify. The applicant objected and read out a memorial in which she accused the prosecutor of “blatant abuse” and “role manipulation”, stating in particular that he was seeking, “by means of procedural tactics, to make a witness out of a co-accused” and that he had “brought trumped-up charges against a person who would qualify as a witness.” The prosecutor reported these statements to the Prosecuting Counsel of the Court of Appeal. The Acting Prosecuting Counsel considered that the applicant had been guilty of defamation but decided not to indict her in view of the minor character of the offence. The prosecutor then brought a private prosecution against the applicant, who was convicted of negligent defamation and sentenced to pay a fine, damages and costs. The Supreme Court, by a majority, upheld the reasons but waived the fine in view of the minor character of the offence.
Law
Article 10 – The interference was based on a reasonable interpretation of the Penal Code and therefore prescribed by law. It was unnecessary to decide whether the proceedings pursued the legitimate aim of protecting the authority of the judiciary, since the interference in any case pursued the legitimate aim of protecting the reputation and rights of the prosecutor. As to the necessity of the interference, while lawyers are entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved. The national authorities have a certain margin of appreciation, but there are no particular circumstances which would justify a wide margin of appreciation in this field. While the limits of acceptable criticism may in some circumstances be wider with regard to civil servants, civil servants do not knowingly lay themselves open to close scrutiny to the same extent as politicians; moreover, they must enjoy public confidence in conditions free of undue perturbation and it may therefore be necessary to protect them from offensive and abusive verbal attacks while on duty. In the present case, such protection did not have to weighed against the interests of freedom of the press or open discussion of matters of public concern. While it could not be excluded that an interference with counsel’s freedom of expression in the course of a trial might raise an issue under Article 6 and considerations of fairness militated in favour of a free and even forceful exchange of argument between the parties, defence counsel’s freedom should not be unlimited. Generally speaking, the distinction in various Contracting States between the role of the prosecutor as the opponent of the accused and that of the judge should provide increased protection for statements whereby an accused criticises a prosecutor as opposed to verbally attacking the judge or the court as a whole. Although the applicant accused the prosecutor of unlawful conduct, the criticism was directed at the prosecution strategy and, while some of the terms were inappropriate, the criticism was strictly limited to the prosecutor’s performance in the case, as distinct from being focused on his general professional or other qualities. In that procedural context, the prosecutor had to tolerate very considerable criticism by the applicant in her capacity as defence counsel. The applicant’s submissions were confined to the court room and did not amount to personal insult. She was subject to the supervision of the court, yet the prosecutor did not raise the matter with the judge and the judge did not take any action. Although the applicant was convicted only of negligent defamation and the fine was waived, the threat of an ex post facto review of counsel’s criticism of another party is difficult to reconcile with defence counsel’s duty to defend the client’s interests. It should be for defence counsel, subject to supervision by the court, to assess the relevance and usefulness of a defence argument, without being influenced by the potential “chilling effect” of even a relatively light criminal sanction or an obligation to pay damages or costs. Only in exceptional cases can restriction of defence counsel’s freedom of expression be accepted and in the present case the restriction failed to answer any “pressing social need”.
Conclusion: violation (five votes to two).
Articles 17 and 18 – No separate issue (unanimously).
Article 41 – The Court awarded the sums which she had been ordered to pay, as well as compensation in respect of non-pecuniary damage and costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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