AS TO THE ADMISSIBILITY OF
Application no. 41205/98
by Enno TAMMER
The European Court of Human Rights (First Section) sitting on 19 October 1999 as a Chamber composed of
Mr J. Casadevall,
Mr Gaukur Jörundsson,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs W. Thomassen, judges,
Mr U. Lõhmus, ad hoc judge,
and Mr M. O'Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 February 1998 by Enno Tammer against Estonia and registered on 14 May 1998 under file no. 41205/98;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 11 February 1999 and the observations in reply submitted by the applicant on 23 March 1999;
Decides as follows:
The applicant is an Estonian citizen, born in 1960 and living in Tallinn. He is represented before the Court by Mr Igor Gräzin, professor at the University of Notre Dame, Indiana, USA.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Particular circumstances of the case
The applicant is a journalist and an editor of the Estonian daily newspaper Postimees.
The applicant made an interview with another journalist, Mr Ülo Russak, which was published in Postimees on 3 April 1996. The topic of the interview was an allegation made by Ms Vilja Laanaru that Mr Russak had published her memoirs without her consent. The memoirs began appearing in another daily newspaper Eesti Päevaleht on 1 April 1996.
Ms Laanaru is married to the Estonian politician Mr Edgar Savisaar, this being his second marriage. In 1990, when Mr Savisaar was married to his first wife, he became Prime Minister of Estonia, which was at that time a Soviet Republic. Ms Laanaru, who had already been working for Mr Savisaar, became his assistant. She continued to work together with Mr Savisaar during the following years and was, among others, in 1995 Counsellor to the Estonian Minister of the Interior at a time when Mr Savisaar held that post.
Apart from that, Ms Laanaru has been politically active in the Centre Party (Keskerakond) led by Mr Savisaar and was an editor of the party's paper.
In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar, whom she gave into the custody of her parents as she did not have time to take care of the child herself.
On 10 October 1995 Mr Savisaar was forced to resign as Minister of the Interior following the discovery of secret tape recordings of conversations with other Estonian politicians. On the same day Ms Laanaru issued a statement in which she claimed full responsibility for the secret recordings. She then left her post in the Ministry of the Interior and began writing her memoirs with the help of a journalist, Mr Russak. In her memoirs Ms Laanaru admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price for sacrificing her child for the sake of her career. She also reflected on her extra-marital relationship with Mr Savisaar, asking herself whether she had broken up his family. In considering the issue of the secret tape recordings she conceded that the statement she had made on 10 October 1995 was not true.
On 19 October 1996 she married Mr Savisaar with whom she had been living for several years.
In the newspaper interview concerning Ms Laanaru's memoirs, the applicant asked Mr Russak the following question:
“Apart from that, don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage (“abielulõhkuja”), an unfit and careless mother deserting her child (“rongaema”)1. It does not seem to be the best example for young girls.”
Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “abielulõhkuja” and “rongaema”.
In the proceedings before the Tallinn City Court (Tallinna Linnakohus) the applicant argued that the used expressions were intended as a question rather than a statement of his opinion and that a question mark after them was left out in the course of the editing by mistake. He denied the intent to offend Ms Laanaru and considered the used expressions used as neutral. He further claimed that Ms Laanaru's actions justified his posing the question.
By judgment of 3 April 1997 the Tallinn City Court convicted the applicant of the offence of insulting Ms Laanaru, under Article 130 of the Estonian Criminal Code and sentenced him to a fine of ten day rates in the amount of 220 Estonian kroons.
In finding against the applicant the City Court took note of the expert opinion issued by the Institute of the Estonian Language (Eesti Keele Instituut) and of the applicant's unwillingness to settle the case by issuing an apology. The City Court also noted that liability under the relevant provision of the Criminal Code did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant. According to the expert opinion the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred. The word “rongaema” indicated that a mother had not cared for her child, and the word “abielulõhkuja” indicated a person who had harmed or broken someone else's marriage. Both phenomena had always been condemned in the Estonian society which was also reflected in the language. The expert opinion further stated that the words were not improper in their linguistic sense.
The applicant submitted an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he argued, inter alia, that the first instance court failed to take into account the context of the whole article in which the two words appeared. He also disputed the qualification of his action as a crime on the grounds that he lacked criminal intent and that the form used was not improper. The applicant further stressed his right as a journalist to freely disseminate ideas, opinions and other information guaranteed by the Estonian Constitution and regarded the judgment of the first instance court as a violation of his freedom of speech.
By judgment of 13 May 1997 the Tallinn Court of Appeal rejected the
applicant's appeal and upheld the judgment of the Tallinn City Court.
The Court of Appeal noted that in private prosecution cases its examination
was limited to the claims put forward by the
offended party. The text of the whole interview, however, had been added to the case file. In its assessment of the impugned expressions, while noting that the expressions were not indecent ones, the Court of Appeal considered them to be grossly degrading to human dignity and their use by the applicant abusive. It pointed out that the use of the improper form in the present case could have been avoided if a negative opinion about Ms Laanaru would have been passed by stating that she did not raise her child and that she destroyed Mr Savisaar's marriage. It also pointed out that the Constitution and the Criminal Code expressly provided for the possibility of restricting the freedom of speech if it infringed on the reputation and rights of others. Despite the special interest of the press in public figures, the latter also had the right to have their honour and dignity protected.
The applicant lodged an appeal in cassation with the Supreme Court (Riigikohus) arguing, inter alia, that the two expressions did not have any synonyms in the Estonian language and therefore he had no possibility to use other words. The use of a longer sentence omitting the words was precluded by the objective circumstances peculiar to journalism.
By judgment of 26 August 1997 the Supreme Court dismissed the applicant's appeal and upheld the judgment of the Tallinn Court of Appeal. In its judgment the Criminal Chamber of the Supreme Court found as follows:
“I. The principle of freedom of speech including the principle of freedom of the press provided for in Article 45 (1) of the Constitution of the Republic of Estonia (hereafter - the Constitution) and Article 10 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms or the European Convention of Human Rights (hereafter - the ECHR) is an inevitable guarantee for the functioning of a democratic society and therefore one of the most essential social values.
According to Article 11 of the Constitution the restriction of any rights or freedoms may take place only pursuant to the Constitution; such restrictions must moreover be necessary in a democratic society and must not distort the nature of the restricted rights and freedoms. The freedom of speech, including the freedom of the press, as a fundamental right may be restricted pursuant to Article 45 of the Constitution for the protection of the public order, morals, the rights and freedoms of other persons, health, honour and good name. Under Article 10 (2) of the ECHR the freedom of speech may be restricted by law also for the protection of morals and the reputation and rights of others.
II. In Estonia a person has in principle the right to protect his or her honour as one aspect of human dignity by resorting to either civil or criminal proceedings.
According to Article 23 (1) of the Law on General Principles of the Civil Code a person has the right to demand in court to put a stop to the besmirching of his or her honour, the right to demand rebuttal of the impugned material provided that the person disgracing him or her fails to prove the truthfulness of the material and also the right to demand compensation for moral or material damage caused by the disgracing of his or her honour.
Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact as only a fact can be proven to be true. If a person feels however that his or her honour has been besmirched by a value judgment, it is impossible to prove it in the legal sense. In its judgments Lingens v. Austria (1986) and Thorgeir Thorgeirson v. Iceland (1992) the European Court of Human Rights has also taken the view that a clear distinction must be made between facts and value judgments. Since the truthfulness of a value judgment cannot be proven, the European Court of Human Rights has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment, this constitutes a violation of the freedom of speech provided for in Article 10 of the ECHR. Therefore, a person in Estonia has in fact no possibility to protect his or her honour with civil measures if the honour has been disgraced by a value judgment. It follows that in [such] cases... a person can only resort to criminal measures for protecting his or her honour - by initiating a private prosecution under Article 130 of the Criminal Code. In the present case, the victim has availed herself of this sole opportunity.
III. The Criminal Chamber of the Supreme Court considers the judgments delivered by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1996 and 13 May 1997 respectively to be lawful and not subject to annulment.
In order to rebut the arguments put forward in the appeal, the Criminal Chamber of the Supreme Court considers it necessary to note the following.
The appellant's statement that the words 'rongaema' and 'abielulõhkuja' could not be offensive to V. Laanaru, since the sentence of the article which included these words did not include the name of V. Laanaru meaning that the words have not been used against anyone personally, is groundless and fabricated. Both the City Court and the Court of Appeal have correctly concluded that the expressions 'rongaema' and 'abielulõhkuja' have been used by [the applicant] to characterise the victim V. Laanaru (Savisaar). The Criminal Chamber of the Supreme Court wishes to add that in the formulation of his next argument - that it is legitimate to use the impugned expressions towards public figures - the appellant has considered V. Laanaru to be a public figure thereby in fact invalidating his first argument.
Although Article 12 of the Constitution stipulates
the equality of everyone before the law, the Criminal Chamber of the
Supreme Court does not consider it necessary to question the special
interest of the press towards public figures - a principle recognised
in the practice of the European Court of Human Rights. However, the
Criminal Chamber of the Supreme Court wishes to stress that in Estonia
there is no legal definition of a public figure and in the practice
of the European Court of Human Rights no one has been considered as
a public figure for the reason that he or she is a spouse, cohabitant,
child or other person close to a public figure. It must be emphasised
nevertheless that it cannot be concluded from the practice of the European
Court of Human Rights that the special interest of the press towards
public figures would mean that public
figures cannot be offended. On the contrary, pursuant to the criminal laws of several countries, e.g. Germany, the act of offending a public figure qualifies as a crime. The public has the right to expect that the press describes the life of public figures more thoroughly than the life of ordinary people, but the public has no right to expect that the honour of public figures be degraded, especially in the press and in an improper manner.
The Criminal Chamber does not agree with the standpoint put forward in the appeal that, since the words 'rongaema' and 'abielulõhkuja' are not vulgar or indecent, their use in referring to a person cannot be considered as degrading a person's honour and dignity in an improper manner which is an obligatory element of the crime definition under Article 130 of the Criminal Code. Improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions. Besides, improper form may also be non-verbal, e.g. a caricature. Both the City Court and the Court of Appeal have correctly taken the view, on the basis of an expert opinion, that by using the words 'rongaema' and 'abielulõhkuja' in reference to V. Laanaru in the newspaper article [the applicant] has treated the victim in public in a dishonourable and thus improper manner.
The statement of the defence lawyer of [the applicant] ... , that the Court of Appeal had no right to prescribe to a journalist which style to use when writing a newspaper article, is without foundation. Such a statement can be accepted to an extent where the use of a journalistic style does not offend or degrade human dignity. In protecting the honour and dignity of a person, the court was correct in pointing out that the idea expressed in an improper form can also be expressed in a proper form in Estonian.
The argument of the appellant, that the offensive expressions 'rongaema' and 'abielulõhkuja' were used due to the absence in the Estonian language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by the objective circumstances peculiar to journalism, is also groundless. There are probably no synonyms to several vulgar and indecent expressions in Estonian. This, however, does not justify their use. Any objective circumstance inherent in the functioning of the press - such as consideration of newspaper space and information density according to the appellant - being local values, cannot be compared to such values as human dignity.
Pursuant to Article 65 (4) of the Criminal Procedure Code in Appeal and Cassation Proceedings, the Supreme Court lacks competence to establish factual circumstances. Accordingly, the Supreme Court cannot reconsider the decision of the City Court and the Court of Appeal which they took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question. However, the Criminal Chamber of the Supreme Court finds it necessary to point out that the dominating opinion in legal writing is that insult is in principle possible also in the form of a question.
It is also important to stress that if the newspaper Postimees has violated the rights of the author [the applicant] and distorted his intent by an incompetent technical editing [by leaving out the question mark in the end of the two expressions] (the letter of the chief editor of Postimees of 16 May 1996 in the file), it would have been possible for [the applicant] or the newspaper to remedy the damage in an out-of-court settlement by simply publishing an apology as the victim had expressed readiness to reach such an settlement. However, neither [the applicant] nor the newspaper Postimees was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult."
B. Relevant domestic law
Article 45 of the Estonian Constitution provides:
“Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and good name of others.”
Article 11 of the Constitution stipulates:
“Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted.”
The relevant provisions of the Criminal Code read as follows:
“The degradation of another person's honour and dignity in an improper form is punished with a fine or detention.”
Article 28: Fine
“1) A fine is a monetary exaction, which the court can impose in an amount up to nine hundred day rates. The day rate of a fine is calculated on the basis of the average daily income of the convict after deduction of taxes and taking into account his or her family and financial status.”
The applicant complains that the decisions of the Estonian courts in which he was found guilty of insult constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention.
The application was introduced on 19 February 1998 and registered on 14 May 1998.
On 21 October 1998 the European Commission of Human Rights decided to invite the respondent Government to submit written observations on the admissibility and merits of the application.
The Government's written observations were submitted on 11 February 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 23 March 1999.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
The applicant complains that his criminal conviction infringed his right to freedom of expression under Article 10 of the Convention which provides:
“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 protection 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.”
The Government accept that the applicant's conviction by the Estonian courts constituted an interference with his right to freedom of expression within the meaning of Article 10. They contend , however, that this interference was justified under paragraph 2 of this provision.
The Government submit that the interference with the applicant's right
was prescribed by law, i.e. by Article 130 of the Criminal Code, which
was adopted by the Parliament and promulgated in the Official Gazette.
The Code is fully accessible to the public and the
relevant Article is formulated with sufficient precision, clearly and unambiguously so as to enable citizens to regulate their conduct accordingly. While the Criminal Code cannot define all words that may be improper the Government argue that in the present case the courts, relying on the expert opinion of the Institute of the Estonian Language, correctly concluded that the terms used by the applicant qualified as insult under Article 130 of the Criminal Code.
The Government further submit that the applicant's conviction pursued a legitimate aim of protecting the rights and reputation of others and that it was necessary in a democratic society. They point to the national authorities' margin of appreciation in assessing the need for the interference and submit that where the Convention refers to domestic law it is primarily the task of the national authorities to apply and interpret domestic law. They contend that in the present case the domestic authorities have not overstepped this margin of appreciation.
It is argued that freedom of expression should not be a license for gratuitous libel, for derogatory statements and deprecatory value judgments on matters that have nothing to do with political issues and which cannot contribute to the necessary political debate in society. Gossip-related curiosity by the public should not be confounded with public interest or public need. There are limits beyond which imagined or alleged “public interest” cannot be invoked as an excuse or justification for invading people's private lives or for publishing or pronouncing on matters which have no relevance or pertinence in public debate. Such publication cannot validly contribute to a proper and constructive debate on important public issues. It is difficult to see how the applicant's subjective value judgments about Ms Laanaru's private life can be of any relevance to such a debate.
It is further contended that in the context of statements concerning another person's private life the duties and responsibilities of the press include an obligation to avoid as far as possible expressions which are gratuitously offensive to others and thus an infringement of their rights and which therefore do not contribute to any form of public debate of furthering progress in human affairs.
Factors to be looked at in this context include the seriousness and the breadth of the accusations, the question whether there had been any adequate previous research and factual basis for the accusations, the journalist's good faith and respect for the ethics of journalism. They contend that none of these factors would be present to support the applicant's claim in the present case.
It is accepted that the limits of freedom of expression are inevitably wider in respect of civil servants and politicians acting in their public capacity than in relation to a private individual. The greater freedom of expression, however, does not apply to the private capacity of politicians and the limits are to be defined in the light of the possible contribution to the debate on political issues and not to other issues. Furthermore, it is argued that Ms Laanaru is not herself independently active in political life, she is active only as the wife, collaborator and supporter of her husband. The wider limits of journalistic freedom applicable to active politicians, do not apply to the same extent to her situation. In any event, the expressions used by the applicant in respect of her do not deserve the enhanced protection to which political views are entitled.
The decisions taken by the courts in the present case are based on the striking of a balance between a right protected under Article 8 of the Convention and a right protected under its Article 10. Such a balance, by definition limiting one or the other, is fully necessary in a democratic society where the conflicts between various equally worthy interests are to be settled by the national judiciary in application of the spirit and the letter of the Convention.
Finally the Government maintain that in the present case the applicant's interest in journalistic freedom does not outweigh Ms Laanaru's right to have her reputation, good name and dignity protected. Therefore they consider the application to be manifestly ill-founded.
The applicant submits that the interference was not in accordance with the conditions set out in paragraph 2 of Article 10 of the Convention. He argues that that Article 130 of the Criminal Code is not formulated with sufficient precision and clarity, that his conviction was not proportionate to the legitimate aim pursued and that it was not necessary in a democratic society.
He disputes the qualification of the impugned expressions as insulting and submits that the courts followed uncritically the flawed expert opinion of the Institute of the Estonian Language. He argues that the expert opinion and the courts failed to make a distinction between the two impugned terms. The term “abielulõhkuja” is a statement verifiable by the facts whereas the term “rongaema” is a value judgment. The factual circumstances of the case prove the validity of the former term: Ms Laanaru's affair was with a married man and it actually destroyed his family. Ms Laanaru herself had admitted this in her published memoirs. He submits that the affair was also within the public knowledge. The term should therefore have been excluded from the case against him.
As to the latter term, he admits that in Estonian tradition it bears quite a significant negative emotional connotation. He argues, however, that in the pragmatic use of today's language the traditional connotation of the term might have disappeared. Instead of relying on the dictionary meanings of the words, which normally reflect a more conservative interpretation, the real meaning of the term “rongaema” in today's society could have been discovered by conducting a sociological study of the use of the current living language. The experts ignored the radical changes which have taken place in the Estonian society concerning the issue of single motherhood over the last century. He further contends that his interview was not published for a narrow group of linguistic experts, but for the public at large. He considers that even the traditional interpretation of the term puts it outside of vulgar or insulting word-usage. Moreover, while the expression is less factual than “abielulõhkuja” it was based on Ms Laanaru's own reflections on her relationship with her child. As both these expressions were thus not disproportionate to the underlying facts, they should not have been regarded as offensive.
He maintains that by asking the question with the two impugned expressions he did not intend to offend Ms Laanaru. His intent was to provoke and receive a reaction from Mr Russak to his question and not to state an opinion of his own. He further argues that the question was not about Ms Laanaru as an individual person, but about the attitude of the press towards a particular type of personality in Estonian society.
In addition it is submitted that the dispute in his case is of a civil nature which should not have been tried in a criminal court. He argues that the Supreme Court in its judgment of 26 August 1997 held incorrectly that defence against disgracing one's honour by value judgments is possible only through criminal measures. He points out that on 1 December 1997 the Supreme Court reversed this position holding that civil law provides remedies to protect one's honour. Due to the availability of civil remedies, it was grave injustice to sentence him as a criminal.
He argues that Ms Laanaru was a public figure in her own right which opened her up to heightened criticism and close scrutiny by the press. She played an independent role in the political life of Estonia by holding the high and influential position of Counsellor to the Minister of the Interior as well as by being an active social figure and an editor of a popular magazine. He considers that by putting herself in the centre of the secret tape recording scandal Ms Laanaru attempted to obtain additional self-publicity.
It is contended that the fact that Ms Laanaru herself made the question of her interference with Mr Savisaar's first marriage as well as her relationship with her child a public issue lessened the scope of her privacy.
He submits that the motive behind his inquiry was of a legitimate character and concerned a matter of public interest. The discovery of the secret recording of Mr Savisaar's conversations with other politicians as well as several earlier controversial measures involving Mr Savisaar at a time when Ms Laanaru was his official counsellor raised legitimate questions about the ethics and values of those in the positions of authority in Estonia. In this context, the modest and concerned question about the personality of Ms Laanaru seemed perfectly justified. The impugned expressions were used to safeguard the interests of the public in receiving information and did not have the sole purpose of pleasing human curiosity without having a real information value.
Finally the applicant maintains that journalistic freedom covers possible recourse to a degree of exaggeration or even provocation and that Article 10 protects not only the substance of ideas and information expressed but also the form in which they are conveyed. He argues that he did not exceed the limits of acceptable criticism and that his journalistic freedom outweighed Ms Laanaru's right to respect for her private and family life. The decisions of the Estonian courts amount to a kind of censure which is likely to discourage journalists from making criticism of that kind again in the future.
The Court considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. It concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
O'Boyle Elisabeth Palm
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