EHRM, 30-11-2006, nr. 10807/04

On 19 June 2000 the NCRV, a private organisation holding a public broadcasting license, broadcast a television documentary entitled ‘Secret mothers’ (Verborgen moeders). It featured a woman, one Ms A.K., who claimed to have been the victim of incest committed by her grandfather, her father and two of her brothers.

Ms A.K. alleged that five pregnancies had resulted. One had been terminated. Of the babies born from the other four, three had been ritually murdered and one had been sold.

These statements were said to be based on memories which Ms A.K. had repressed but which she had been able to recover with the aid of a therapist, Mr Kieft, who had been treating her for six years.

The K. family, who denied the truth of Ms A.K.'s allegations, sought the assistance of the applicant.

The Amsterdam public prosecutor (officier van justitie) opened a prosecution file, charging the NCRV with criminal libel.

On 14 June 2002 the public prosecution service published a press release in which it was stated that the NCRV had admitted having libelled the K. family and had settled out of court. The prosecution had been dropped subject to the conditions, which the NCRV had accepted, that the NCRV would pay a sum of money to the public prosecution service, publish a retraction and pay the K. family compensation for pecuniary and non-pecuniary damage and legal costs.

On 28 November 2001 another private organisation holding a public broadcasting license, the AVRO, broadcast a radio programme featuring an interview with the applicant about the case of the K. family.

The applicant said, among other things:

The interviewer explained that the reference was to

going on to say:

Referring to the intuitive methods used by Mr Kieft, the interviewer stated:

The applicant responded, saying, among other things:

Later in the programme, referring to a conversation which Mr Kieft had had with Ms A.K.'s parents in 1994, the applicant said, among other things:

The programme also comprised an interview with Mr Kieft, who stated that he was neither a hypnotist nor a regression therapist properly so‑called. He believed, however, that the emotions aroused by relaxation exercises and acupressure reflected true events and he was certain that the memories which he had helped Ms A.K. recover were the truth.

On 9 December 2001 Mr Kieft lodged a complaint against the applicant with the Dean (deken) of the local Bar Association (Orde van Advocaten).

The Dean gave a provisional opinion on 22 March 2002. It mentions that Mr Kieft was asked, on 24 January 2002, to state his medical and scientific qualifications but declined to do so.

The Dean noted that Mr Kieft's refusal to state his qualifications did not, at any rate, indicate that the applicant's statements were incorrect. However, it was understandable that Mr Kieft should feel aggrieved and it was not clear that the interests of the K. family were served by the applicant's statements.

The provisional conclusion was that the complaint was well-founded. The Dean forwarded Mr Kieft's complaint to the Amsterdam Disciplinary Council (Raad van Discipline) on 5 April 2002.

The Disciplinary Council held a hearing on 14 October 2002. On 16 December 2002 it gave a decision finding Mr Kieft's complaint unfounded. It recognised that the K. family had a legitimate interest in contesting, in the media and elsewhere, the accusations levelled against them by Ms A.K.; the applicant's expressions, though forceful, had not been disproportionate.

Mr Kieft appealed to the Disciplinary Appeals Tribunal (Hof van Discipline).

That Tribunal held a hearing on 28 April 2003, at which it was stated among other things that Mr Kieft had been practising as a self-employed psychotherapist since 1981. He had been trained at the International Institute of Unitive Psychotherapy, after which he had taken some practical and theoretical courses and a two-year course on multi-method relationship therapy. He was a recognised member, supervisor and trainer of the Association for Unitive Psychotherapy (Vereniging voor Unitieve Psychotherapie). He was associated with the private foundation (stichting) Institute for Registration, Certification and Development of Nature-Oriented Health Care (Stichting Registratie-, Certificatie- en Ontwikkelingsinstituut Natuurgerichte Gezondheidszorg, also known as ‘Registration Institute for Nature-Oriented Health Care’, Registratie-instituut Natuurgerichte Gezondheidszorg, or ‘RING’), which had set up a disciplinary system.

On 3 October 2003 the Tribunal gave its decision. It considered that a lawyer had not to judge the quality of a particular therapeutic method. Although Ms A.K. had levelled accusations against her family involving five pregnancies, three infanticides, an abortion and the sale of a baby, Mr Kieft had not been present when she did so; the applicant should therefore not have connected Mr Kieft to them.

Nor should he have suggested that Ms A.K.'s alleged repressed memories had been caused by Mr Kieft's use of hypnotism or regression therapy, Mr Kieft not having claimed to be a hypnotist or a regression therapist. The applicant had been unclear in explaining what improper therapeutic measures exactly he held against Mr Kieft.

The conversation between Mr Kieft and Ms A.K.'s parents in 1994, also criticised by the applicant, had not been part of the therapy. In any case, the applicant's criticism of that conversation was unfounded given that the applicant had not clearly explained why he considered Mr Kieft negligent in his therapeutic methods.

The applicant's vagueness might have been defensible if only he had chosen to make the interview a ‘clarion call’ (klaroenstoot) preparatory to a civil suit to follow shortly after, but no civil suit had ever been brought.

The applicant had not been entitled either to describe Mr Kieft as a ‘magus’ who ‘likened himself to God’. Mr Kieft had in fact stated, in his 1994 conversation with Ms A.K.'s parents, his reasons for believing the truth of Ms A.K.'s statements, and he had been careful to spare them feelings of guilt for the acts of their sons and to avoid labelling the sons as delinquents.

Whether or not the applicant could be said to have used ‘irony’, as he argued, the way in which he had expressed himself had been unnecessarily wounding (onnodig grievend) for Mr Kieft.

Mr Kieft's complaint was therefore well-founded. Since the applicant had a clean record, he was given a mere admonition (enkele waarschuwing).

It is not in dispute that there has been an interference (in the form of a ‘penalty’) with the applicant's freedom of expression, that this interference was prescribed by law and that it was intended to protect ‘the reputation or rights of others’. The parties differ as to whether it could be considered ‘necessary in a democratic society’ for the stated purpose.

The Court has stated the principles generally applicable as follows (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88–91, ECHR 2004-XI, case-law references omitted):

The Court has had occasion to point out that although advocates too are entitled to freedom of expression, the special nature of the legal profession has a certain impact on their conduct in public, which must be discreet, honest and dignified (see, as a recent authority, Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI).

The present case differs from other cases in which the Court has had to consider the use made by members of the legal profession in the course of their professional activities of their freedom of expression. Here the interest served by the interference complained of is not public confidence in the judiciary or indeed the standing of any public official, but the reputation of a private individual — in this case, a practitioner of alternative psychotherapy.

Ms A.K. had publicly accused her family of crimes of a particularly loathsome nature: repeated sexual abuse having caused five pregnancies, the ritual murder of three of the resulting babies, the sale of the fourth and the abortion of the fifth foetus. The K. family retained the applicant to seek redress for the injury caused them and to defend their reputation. It cannot be doubted that the applicant was entitled to make public statements in his clients' interest, even outside the courtroom, subject to the proviso that he was acting in good faith and in accordance with the ethics of the legal profession (compare, mutatis mutandis, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, p. 24, § 48; more recently, again mutatis mutandis, Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002-V, and Steur v. the Netherlands, cited above, §§ 42–43).

In the event, the applicant questioned Mr Kieft's professional qualifications and competence and expressed the opinion that he and his ilk were not fit to administer psychotherapy to patients. It is clear that the applicant's statement, which was given publicity in broadcast and print media, was capable of discrediting Mr Kieft as a practitioner of psychotherapy and thus of affecting his professional standing and income.

The Court has in the past distinguished between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. Even so, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria, no. 26958/95, §§ 42–43, ECHR 2001-II).

In the present case, as regards the factual basis of the applicant's statement, it must be accepted that there was a link between Ms A.K.'s accusations and the therapy which she had received from Mr Kieft over a period of several years. In fact Mr Kieft never denied this.

What is more, in the same radio programme in which the applicant made his impugned statement, Mr Kieft stated unambiguously not only that his therapy had helped Ms A.K. to recover her recollections but also that his therapy enabled him to accept them as the truth.

As far as the Court is aware, there has been no confirmation of the accuracy of Ms A.K.'s statements from any source unrelated to Ms A.K. herself and Mr Kieft.

In these circumstances, and especially given the extremely serious accusations levelled against the K. family, there was nothing unreasonable in expecting Mr Kieft at the very least to state his qualifications. Indeed it is difficult to see how else in this case the existence or absence of any factual basis for the opinion expressed by the applicant could be established.

However, Mr Kieft was allowed to withhold all information about his qualifications and training until the very last stage of the disciplinary proceedings, the hearing before the Disciplinary Appeals Tribunal. What is more, it is not apparent from the resulting decision that the Disciplinary Appeals Tribunal sought to determine either whether or not Mr Kieft had the professional competence to establish the truth of Ms A.K.'s accusations by psychotherapy alone or whether the applicant was in a position to substantiate and justify his statements himself.

The Court considers that an ‘acceptable assessment of the relevant facts’ required an investigation into at least this important aspect of the case. Only then would it have been possible to give an informed decision as to whether the applicant had overstepped the limits of acceptable professional behaviour. As it is, the decision given by the Disciplinary Appeals Tribunal was based on an inadequate assessment of the facts and the reasons given therefore lacked relevance.

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention.