Professional Documents
Culture Documents
CASE OF TAMMER v. ESTONIA PDF
CASE OF TAMMER v. ESTONIA PDF
DE L’EUROPE OF EUROPE
FIRST SECTION
JUDGMENT
STRASBOURG
6 February 2001
FINAL
04/04/2001
TAMMER v. ESTONIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 41205/98) against the
Republic of Estonia lodged with the European Commission of Human
Rights (“the Commission”) under former Article 25 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Estonian national, Mr Enno Tammer (“the applicant”),
on 19 February 1998.
2. The applicant was represented by Mr I. Gräzin, Dean of the Law
Faculty at University Nord in Tallinn, Estonia. The Estonian Government
(“the Government”) were represented by their Agents, Mr E. Harremoes,
Special Adviser of the Permanent Representation of Estonia to the Council
of Europe, and Ms M. Hion, First Secretary of the Human Rights Division
of the Legal Department of the Ministry of Foreign Affairs.
3. The applicant alleged a violation of Article 10 of the Convention in
connection with his conviction for remarks he made in a newspaper
interview.
4. The application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 § 2 of
Protocol No. 11).
5. The application was allocated to the First Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1. Mr R. Maruste, the judge elected in respect of
Estonia, withdrew from sitting in the case (Rule 28). The Government
accordingly appointed Mr U. Lõhmus to sit as an ad hoc judge (Article 27
§ 2 of the Convention and Rule 29 § 1).
2 TAMMER v. ESTONIA JUDGMENT
THE FACTS
8. At the material time the applicant was a journalist and editor of the
Estonian daily newspaper Postimees.
9. The applicant's complaint under Article 10 of the Convention relates
to his conviction by the Estonian courts of insulting Ms Vilja Laanaru in an
interview he had conducted with another journalist, Mr Ülo Russak, which
was published in Postimees on 3 April 1996. The interview was entitled
“Ülo Russak denies theft” and was prompted by an allegation made by
Ms Laanaru that Mr Russak, who had helped her to write her memoirs, had
published them without her consent. The interview had the following
background.
10. Ms Laanaru is married to the Estonian politician Edgar Savisaar. In
1990, when Mr Savisaar was still married to his first wife, he became Prime
Minister of Estonia. Ms Laanaru, who had already been working for him,
became his assistant. She continued to work with him during the following
years and in 1995, when Mr Savisaar held the post of Minister of the
Interior, she was one of his counsellors.
11. Ms Laanaru had been politically active in the Centre Party
(Keskerakond) led by Mr Savisaar and was an editor of the party's paper.
12. In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar.
As she was unwilling to place her child in a kindergarten, the child was
entrusted to her parents.
13. On 10 October 1995 Mr Savisaar was forced to resign as Minister of
the Interior following the discovery of secret tape recordings of his
conversations with other Estonian politicians. On the same day Ms Laanaru
issued a statement in which she claimed full responsibility for the secret
recordings.
14. Ms Laanaru then left her post in the Ministry of the Interior and
began writing her memoirs with the help of a journalist, Mr Russak.
TAMMER v. ESTONIA JUDGMENT 3
possibility of using other words. The use of a longer sentence omitting the
words had been precluded by objective circumstances peculiar to
journalism.
29. By a judgment of 26 August 1997, the Supreme Court's Criminal
Division rejected the applicant's appeal and upheld the Court of Appeal's
judgment. Its judgment included the following reasons:
“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 ('the
Constitution') and Article 10 § 1 of the European Convention on Human Rights ('the
ECHR'), is an indispensable guarantee for the functioning of a democratic society and
therefore one of the most essential social values.
...
II. In Estonia a person has in principle the right to protect his or her honour as one
aspect of human dignity by bringing either civil or criminal proceedings.
According to section 23(1) of the Law on General Principles of the Civil Code, a
person has the right to apply for a court order 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 defaming him or her fails to prove the truthfulness of the material and also the
right to demand compensation for pecuniary or non-pecuniary damage caused by the
attack on 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
proved to be true. However, if a person feels that his or her honour has been
besmirched by a value judgment, it is impossible to prove that allegation in a legal
sense. In its Lingens v. Austria (1986) and Thorgeir Thorgeirson v. Iceland (1992)
judgments, 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 truth of a
value judgment cannot be proved, 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 of protecting his or her honour through civil-law remedies if he or
she has been defamed by means of a value judgment. It follows that in [such] cases ...
a person can only resort to criminal-law remedies 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.
6 TAMMER v. ESTONIA JUDGMENT
III. The Criminal Division of the Supreme Court considers the judgments delivered
by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1997 and
13 May 1997 respectively to be lawful and not subject to annulment.
In response to the arguments put forward in the appeal, the Criminal Division 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 in the article which contained 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 Division 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.
The Criminal Division 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 that person's honour
and dignity in an improper manner, which is an obligatory element of the definition of
the offence 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, for example 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 defamatory and thus improper manner.
The statement of [the applicant's] defence lawyer ... that the Court of Appeal had no
right to prescribe which style a journalist was to use when writing a newspaper article
is without foundation. Such a statement can be accepted in so far as the journalistic
style does not offend or degrade human dignity. Concerning the protection of the
TAMMER v. ESTONIA JUDGMENT 7
honour and dignity of a person, the court was correct in pointing out that the idea
expressed in an improper form could 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
objective circumstances peculiar to journalism, is also ill-founded. There are probably
no synonyms for several vulgar and indecent expressions in Estonian. This, however,
does not justify their use. Any objective circumstances inherent in the functioning of
the press – such as consideration of newspaper space and information density,
according to the appellant – being values whose scope is limited to a particular sphere,
cannot be compared to such values as human dignity.
Article 45
“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
“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.”
8 TAMMER v. ESTONIA JUDGMENT
“The degradation of another person's honour and dignity in an improper form shall
be punished with a fine or detention.”
Article 28 – Fine
“1. A fine is a penalty which the court can impose up to a limit of nine hundred
times a person's daily income. The 'daily income' rate is calculated on the basis of the
average daily wage of the defendant following deduction of taxes and taking into
account his or her family and financial status.”
THE LAW
32. The applicant submitted 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,
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. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
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.”
A. Existence of an interference
33. The Court notes that it is undisputed that the applicant's conviction
amounted to an interference with his right to freedom of expression.
TAMMER v. ESTONIA JUDGMENT 9
1. “Prescribed by law”
35. The applicant submitted that Article 130 of the Criminal Code, upon
which his conviction was based, was not formulated with sufficient
precision and clarity.
36. The Government argued that the Article defined the offence of insult
in precise terms so as to allow the applicant to regulate his professional
activities accordingly. The interpretation and application of Article 130 by
the national courts did not go beyond what could reasonably be foreseen in
the circumstances by the applicant.
37. The Court reiterates that one of the requirements flowing from the
expression “prescribed by law” is the foreseeability of the measure
concerned. A norm cannot be regarded as a “law” unless it is formulated
with sufficient precision to enable the citizen to regulate his conduct: he
must be able – if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given
action may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows this to be unattainable. Whilst certainty
in the law is highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which, to a greater
or lesser extent, are vague and whose interpretation and application are
questions of practice (see, for example, Rekvényi v. Hungary [GC],
no. 25390/94, § 34, ECHR 1999-III).
38. The Court notes that Article 130 of the Criminal Code is worded in
rather general terms, but finds that the statutory provision cannot be
regarded as so vague and imprecise as to lack the quality of “law”. It
reiterates that it is primarily the task of national authorities to apply and
interpret domestic law (see, for example, Otto-Preminger-Institut v. Austria,
judgment of 20 September 1994, Series A no. 295-A, p. 17, § 45). In the
circumstances of the present case the Court is satisfied that the interference
was “prescribed by law”.
2. Legitimate aim
39. It was common ground that the interference in issue pursued the aim
of “the protection of the reputation or rights of others”.
10 TAMMER v. ESTONIA JUDGMENT
40. Having regard to the circumstances of the case and to the judgments
of the domestic courts, the Court considers that the conviction of the
applicant pursued the legitimate aim of the protection of the reputation or
rights of Ms Laanaru. The interference complained of therefore had a
legitimate aim under paragraph 2 of Article 10.
holding that civil law provided remedies to protect a person's honour. The
availability of civil remedies made it a grave injustice to sentence him as a
criminal.
45. The applicant contended that Ms Laanaru was a public figure in her
own right, a fact which made her open to heightened criticism and close
scrutiny by the press. She had 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. By putting herself in the centre of the secret
tape-recording scandal, Ms Laanaru had attempted to obtain additional
publicity for herself.
46. The applicant argued that the fact that Ms Laanaru had herself made
the question of her interference into Mr Savisaar's first marriage as well as
her relationship with her child a public issue had lessened the scope of her
privacy.
47. The motive behind his question had been legitimate and had
concerned a matter of public interest. The discovery of the secret recordings
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 had raised legitimate questions about
the ethics and values of those in positions of power in Estonia. In this
context, the modest and concerned question about the personality of
Ms Laanaru had seemed perfectly justified. The impugned expressions had
been used to serve the interests of the public in receiving information and
not for the sole purpose of gratifying human curiosity without any real
information value.
48. The applicant considered that he had not exceeded 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 amounted to a kind of censure which was likely to
discourage journalists from making criticism of that kind again in the future.
49. The Government maintained that the interference was necessary in a
democratic society, in other words it corresponded to a “pressing social
need”, it was proportionate to the legitimate aim pursued and the reasons
given to justify it were relevant and sufficient. They contended that, in the
present case, the domestic authorities had not exceeded the margin of
appreciation available to them in assessing the need for such interference.
50. They argued that the wider limits of journalistic freedom applicable
to civil servants and politicians acting in their public capacity did not apply
to the same extent in the case of Ms Laanaru. She was active in politics only
as the wife, collaborator and supporter of Mr Savisaar, not independently of
him. The disobliging references to an ordinary citizen's private life and
history, even if her name was linked to that of a prominent politician, could
not constitute a matter of serious public concern. The relationship between a
12 TAMMER v. ESTONIA JUDGMENT
woman, who had withdrawn from the civil service, and a man, who at that
time had withdrawn from politics, was a very private matter which could
not be considered a question affecting the public. The impugned words did
not bear on any matter of serious public interest and concern. There was no
social purpose in making insulting comments on a private person's family
life.
51. The Government refuted the applicant's argument concerning the
need to inform the public about Ms Laanaru's private life. The applicant had
chosen the words to provoke and to create sensational headlines and had not
acted in good faith. In any event, such an argument could under no
circumstances exonerate him from following the basic ethics of journalism
and the defamation laws.
52. The Government stressed that the applicant had not been convicted
for describing a factual situation or for expressing a critical opinion about
Ms Laanaru's personality or about her private or family life. His conviction
was based on his choice of words in relation to her which were considered
to be insulting. Had the applicant just described Ms Laanaru as having been
the cause of a divorce, as having broken up someone's marriage or as not
taking care of her child, this would not have constituted an insult, as pointed
out by the Court of Appeal (see paragraph 27 above).
53. The Government noted that the expressions “rongaema” and
“abielulõhkuja” had a very special meaning in the Estonian language, and
that they had no equivalent in English. When interpreting the words and
their meaning, their specific nature within the Estonian language and culture
should also be taken into account.
54. The Government argued that the applicant had used the impugned
words not, as he claimed, to describe aspects of Ms Laanaru's private life
which were largely known to the public, but to denigrate her in public
opinion. They recalled that Ms Laanaru had entrusted her child to her
mother as she did not wish to put the child into a kindergarten. It was quite
common in Estonia today for grandparents to take care of their
grandchildren.
55. The Government disputed the applicant's allegation that Ms Laanaru
had herself placed her private life within the public domain. The interview
published in April 1996 was not an interview with Ms Laanaru about her
private and family life, but an interview with another journalist about the
publication of Ms Laanaru's memoirs and her private life. They recalled that
on 29 March 1996 Ms Laanaru had obtained a court order prohibiting the
publication of her memoirs. At that time, she no longer had any intention of
making them public.
56. As regards the proportionality of the interference to the legitimate
aim pursued, the Government pointed out that the case was one of private
prosecution, in other words the proceedings were initiated by the aggrieved
Ms Laanaru and not by the prosecution authorities. The Tallinn City Court
TAMMER v. ESTONIA JUDGMENT 13
had made an attempt to settle the case during the proceedings, but the
applicant had refused to accept the proposal of apologising to Ms Laanaru.
At no time had the public prosecutor intervened or associated himself with
the proceedings, although he had had the right to participate in them and the
court had invited him to do so. The executive had taken no action
whatsoever before the national courts and had remained entirely neutral
throughout the proceedings.
57. Furthermore, the Government submitted that the applicant had been
sanctioned only with a modest fine of 220 kroons – an amount ten times the
minimum daily salary.
58. Finally, the Government maintained that the decisions of the national
courts had been 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.
The Supreme Court, in rejecting the applicant's complaint, had applied the
same test as the European Court of Human Rights does and there was ample
reference in its judgment to the latter's case-law. The Supreme Court, in its
thoroughly reasoned judgment, had duly and carefully balanced the
applicant's interest in freely expressing his opinion against the need to
protect the reputation and rights of Ms Laanaru.
59. According to the Court's well-established case-law, freedom of
expression constitutes one of the essential foundations of a democratic
society and one of the basic conditions for its progress and each individual's
self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only
to “information” or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic society”. This
freedom is subject to the exceptions set out in Article 10 § 2, which must,
however, be construed strictly. The need for any restrictions must be
established convincingly (see, for example, Lingens v. Austria, judgment of
8 July 1986, Series A no. 103, p. 26, § 41, and Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
60. The adjective “necessary”, within the meaning of Article 10 § 2,
implies the existence of a “pressing social need”. The Contracting States
have a certain margin of appreciation in assessing whether such a need
exists, but it goes hand in hand with a European supervision, embracing
both the legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final ruling
on whether a “restriction” is reconcilable with freedom of expression as
protected by Article 10 (see Lingens, cited above, p. 25, § 39, and Janowski
v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).
61. In exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including the
content of the remarks held against the applicant and the context in which
14 TAMMER v. ESTONIA JUDGMENT
restriction justified for the protection of her reputation and rights (see
paragraphs 25, 27 and 29 above). In the context of the freedom of the press,
the requirements of such protection have to be weighed in relation to the
interest of the applicant as a journalist in imparting information and ideas on
matters of public concern.
66. In this connection, the Court notes that the impugned remarks related
to the aspects of Ms Laanaru's private life which she described in her
memoirs written in her private capacity. While it is true that she herself had
intended to make these details public, the justification for the use of the
actual words by the applicant in the circumstances of the present case must
be seen against the background which prompted their utterance as well as
their value to the general public.
67. In this connection, the Court observes that the remarks were
preceded by the reflections of Ms Laanaru on her role as a mother and in
breaking up Mr Savisaar's family. It notes, however, that the domestic
courts found that the words “rongaema” and “abielulõhkuja” amounted to
value judgments couched in offensive language, recourse to which was not
necessary in order to express a “negative” opinion (see paragraph 27 above).
It considers that the applicant could have formulated his criticism of Ms
Laanaru's actions without resorting to such insulting expressions (see, for
example, Constantinescu v. Romania, no. 28871/95, § 74, ECHR 2000-
VIII).
68. The Court notes the differences in the parties' position concerning
the public-figure status of Ms Laanaru. It observes that Ms Laanaru resigned
from her governmental position in October 1995 in the wake of the affair of
the secret tape recordings by Mr Savisaar, for which she claimed
responsibility (see paragraph 13 above). Despite her continued involvement
in the political party, the Court does not find it established that the use of
the impugned terms in relation to Ms Laanaru's private life was justified by
considerations of public concern or that they bore on a matter of general
importance. In particular, it has not been substantiated that her private life
was among the issues that affected the public in April 1996. The applicant's
remarks could therefore scarcely be regarded as serving the public interest.
69. In considering the way the domestic authorities dealt with the case,
the Court observes that the Estonian courts fully recognised that the present
case involved a conflict between the right to impart ideas and the reputation
and rights of others. It cannot find that they failed properly to balance the
various interests involved in the case. Taking into account the margin of
appreciation left to the Contracting States in such circumstances, the Court
considers that the domestic authorities were, in the circumstances of the
case, entitled to interfere with the exercise of the applicant's right. It recalls
that, in assessing the proportionality of the interference, the nature and
severity of the penalties imposed are also factors to be taken into account
(see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37,
16 TAMMER v. ESTONIA JUDGMENT
ECHR 1999-IV). In this respect, it notes the limited amount of the fine
imposed on the applicant as a sanction provided for in Article 28 of the
Criminal Code (see paragraph 31 above).
70. Having regard to the foregoing, the Court considers that the
applicant's conviction and sentence were not disproportionate to the
legitimate aim pursued and that the reasons advanced by the domestic courts
were sufficient and relevant to justify such interference. The interference
with the applicant's right to freedom of expression could thus reasonably be
considered necessary in a democratic society for the protection of the
reputation or rights of others within the meaning of Article 10 § 2 of the
Convention.
71. There has consequently been no breach of Article 10 of the
Convention.