EHRM, 09-04-2009, nr. 28070/06

On 19 May 2000, two girls of eight and ten years of age were raped and stabbed to death in Baneheia, a recreation area in the city of Kristiansand. Two young men were later convicted of the crimes and sentenced to 21 and 19 years of imprisonment respectively for rape and murder committed in particularly aggravating circumstances. The case received intense and extensive coverage in the national media.

In 1988 the applicant had been convicted of murder, attempted murder and eight instances of assault, all committed by the use of knife in June 1987 in Kristiansand. He had been sentenced to 11 years' imprisonment and to five years' security measures (sikring) (which under the relevant law at the time, could be imposed where it was established that the person concerned was not mentally ill (and thus criminally liable) but had an underdeveloped and permanently impaired mental capacity and that, because of this condition, there was a clear risk of his or her committing further criminal offences). Shortly before the expiry of the security measures on 20 September 1999, the public prosecutor had requested a prolongation, which a first instance court had granted in March 2000 for a period of three years (but which an appellate court refused in January 2001). In May 1999 the applicant had been released from security detention (lukket sikring) and had been placed under supervision at liberty (fri sikring). Thereafter he had lived in Kristiansand, partly in a camping cabin and partly in his family's cabin by the river and had been working at a protected workplace for persons on rehabilitation scheme. He was a substance abuser and was connected to a group which used to gather at the so-called ‘Acid Knoll’, a place in the recreation area where the murders had taken place.

During the early stages of the murder investigation, the applicant and a number of other previously convicted persons were interrogated as witnesses. The police's interest in the applicant attracted considerable media attention.

Two days after the murder, the police collected the applicant from his workplace and brought him to the police station. The police interrogated him for 10 hours until 00.30 am on 24 May 2000, and then brought him to his home. The interrogation became known to the press and was presented in the national media on 23 and 24 May 2000 together with information about his criminal trial in 1988 and the imposition of security measures in his case. In their issues published on those dates, three national newspapers, Aftenposten, Dagbladet and Verdens Gang, reported on the applicant but without stating his identity.

Also a national television channel, the TV2, gave extensive reports. In a news broadcast on 23 May 2000, at 9 pm (while the applicant was being interrogated), it stated:

In a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that members of the press had followed a 42 year old murderer from Kristiansand in his footsteps. Then ensued an interview with the applicant, during which he was filmed from behind and partly from the side, on his way to the so-called ‘Acid Knoll’ in the Baneheia area.

On 25 May 2000 Dagbladet published information about the applicant's place of residence, in a report which also contained an interview with him.

On 24 May 2000, the newspaper Fædrelandsvennen, which is mainly a subscription newspaper (45,000 subscribers) and the principal district newspaper on the southern coast of Norway, published a report on the Baneheia case. The front page carried the following headline and introduction:

Inside the newspaper at page 4 appeared an article entitled

With the subtitle:

The article contained a brief interview with the applicant, in which he stated that he had nothing to do with the matter and that he had witnesses. Next to the article appeared a large photograph showing the applicant from the side while entering a bus, not showing his head and the upper part of his bust inside the bus. A caption stated that the 42 year old was on his way to work at 7 am and: ‘I am completely innocent`’, says the previously murder convicted man who yesterday was interrogated for 10 hours.’

Underneath on the same page, the paper reproduced another article entitled:

The introduction stated:

The article was accompanied by a large photograph of ‘the 42-year-old’, with his head blurred, accompanied by two police officers.

The article stated that the police had collected him at his workplace in the afternoon of 23 May 2000 for a 10 hour long interrogation. It described inter alia the background for the police's interest in the applicant, reiterating that he had purportedly been seen by several witnesses in Baneheia on Friday night when the two girls had disappeared. Furthermore, reference was made to the factual background of his conviction in 1988. The following sub-titles were used: ‘Seen by the police’, ‘Released for one year’, ‘Berserk with a knife’, and ‘Victims at random’.

The article further quoted statements by a Chief Constable, Mr A. Pedersen, underlining that there ‘were still no suspects in the case’ and that all of the people summoned for questioning had ‘formal status as witnesses in the case.’ This point was further elaborated on in an interview with the Chief Constable on the same page, entitled ‘No one imprisoned today.’

In yet another article appearing under the heading ‘Have got the murderer in the papers’, the Chief Constable was quoted to have said to Verdens Gang that ‘the police have received so much information of substance that they have the answer in their documents to the question who had murdered the two young girls.’

The Baneheia case was also the main item on the front page of Fædrelandsvennen on 25 May 2000, with the heading ‘DNA traces found at murder place’. The article reiterated that according to the preliminary autopsy report, both of the girls had been sexually abused, that they had been murdered with a pointed and sharp penetrating arm, most probably with a knife. Page 6 of the paper contained an interview with some neighbours of the 42 year old, entitled ‘Neighbours fear prejudgment’, published together with a photograph of a residential development site. The article named a specific residential development area, Q, and its precise location, Z, stating that it was the ‘nearest neighbour to the 42-year-old convicted of murder.’

In a further article on the same page, under the heading ‘They want to know where I am’, the paper mentioned the name of the street where the applicant lived (Y), that of his neighbourhood (Z), and that of the company where he worked. The article rendered a statement by the applicant maintaining his innocence and informing that the police had wanted to know his whereabouts but had let him in peace. Next to the article appeared a photograph of the applicant seen from behind, at a relatively long distance, on his way down towards the Z-river, with the caption: ‘The 42 year old murder convict on his way home yesterday’.

On the same page appeared an article headed ‘Searching for a locally known murderer’, which quoted Chief Constable Pedersen as stating inter alia that the main emphasis of their investigation had been based on the belief that the murderer(s) had been locally known but that a wider Nordic focus had also been discussed. He had added that it was dangerous to concentrate the investigation on a specific milieu.

At the material time, Fædrelandsvennen was published in the afternoon, whereas Dagbladet, Verdens Gang and Aftenposten were published in the morning.

In October 2000, after the arrest of the actual perpetrators in the Baneheia case, the applicant, represented by a lawyer, demanded that Fædrelandsvennen apologise for its coverage and compensate him for pecuniary and non-pecuniary damage he had sustained. As the newspaper refused, in December 2000 the applicant's lawyer brought on his behalf defamation proceedings before the Kristiansand City Court (tingrett) against Fædrelandsvennen, its editor-in-chief, Mr F. Holmer-Hoven and journalist B. The applicant claimed compensation for pecuniary and non-pecuniary damage.

By a judgment of 16 April 2003 the City Court rejected the applicant's action.

The applicant then appealed to Agder High Court (lagmannsrett). He waived his claim for pecuniary damage, which matter was formally discontinued (hevet), but maintained his claim for non-pecuniary damage.

By a judgment of 23 December 2004, the High Court, sitting with three judges, found that an ordinary reader could perceive the impugned press reports published by the Fædrelandsvennen on 24 and 25 May 2005 as pointing to the applicant as a possible perpetrator of the murders of the two girls in Baneheia. The High Court observed that, although the paper had not mentioned the applicant by name, it ought to have been possible for those who knew him in advance to recognise him, in particular from the photograph taken of him from behind and from the information about his residence- and work places contained in the 25 May 2000 issue. It was hard to derive anything specific about the strength of the suspicion. Although it was true that formally speaking the applicant had only been given witness status, seen as a whole the report was capable of giving the ordinary reader the impression that the paper regarded the applicant as a person who already at an early stage of the investigation had stood out as the most probable perpetrator among those who had been in the police's search light. The High Court moreover noted a number of other aspects of the publications confirming this impression. It concluded that the impugned publications were defamatory in the sense of Article 247 of the Penal Code.

As to the question whether the publications were unlawful (rettstridig), the High Court was of the view that it generally should fall within the State's margin of appreciation to strike a fair balance between the interests in protection of freedom of speech under Article 10 of the Convention and the interests in protection of reputation under Article 8, bearing in mind also the presumption of innocence under Article 6 § 2. On the particular facts of this case, the High Court considered that there was undoubtedly a great public interest in the investigation of the murders and in the pursuit of the culpable persons. However, with two votes to one, the High Court found that, on balance, the interests in allowing the publications weighed more heavily than those against and that the impugned news coverage had therefore not been unlawful.

The dissenting member found that the ‘identification’ of the applicant and its extensive press coverage by Fædrelandsvennen had been unlawful and that he should be awarded compensation under section 3–6 of the Damage Compensation Act 1969, namely NOK 150,000 by the newspaper and NOK 25,000 each from the editor-in-chief and from the journalist.

The applicant appealed against the High Court's application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems.

By a judgment of 14 December 2004 the Supreme Court, by three votes to two, found in favour of the respondents and rejected the applicant's claim.

Mr Justice Stang Lund, whose reasoning was endorsed in the main by the other judges in the majority, inter alia concurred with the High Court's finding that, the Fædrelandsvennen's focus on the applicant as a previously convicted knife killer, his presence in Baneheia on the day when the criminal acts had been committed and the investigation of the applicant, for an ordinary reader must have been perceived as if he could be suspected of having committed the murders. It had already been publicly known that the perpetrators of the murders had used pointed penetrating weapons against the girls. This information together with the rendering of parts of the judgment by which the applicant had been convicted in 1988 and the security measures case, were likely to harm his good name and reputation and to expose him to hatred and contempt, thus fulfilling the objective constitutive elements in Article 247 of the Penal Code. On these points Mr Justice Stang Lund stated:

As to the further question whether the allegations were unlawful (rettstridige), Mr Justice Stang Lund observed inter alia the following with regard to the concrete circumstances of the case:

Mrs Justice Coward, whose opinion was endorsed in the main by the other judge of the minority, stated, amongst other:

In October 2003 the applicant brought defamation proceedings against TV2 AS (Ltd.) before the Kristiansand City Court claiming compensation with regard to TV2's news coverage on 23 and 24 May 2000 of the Baneheia case. The City Court found for TV2 and rejected the applicant's claims. On an appeal by the applicant, on 8 December 2006 the Agder High Court upheld the applicant's claim that the news coverage constituted unlawful defamation and ordered the defendants to pay him NOK 250,000 in compensation for non-pecuniary damage and discontinued the case with regard to his claim for pecuniary damage. As regards the contents of the disputed broadcasts and their defamatory effect, the Agder High Court made similar findings in the TV2 case as made by the appellate courts in the present case. In finding the defamation unlawful it had regard to several factors, notably TV2's national as opposed to local media role, unlike that of Fædrelandsvennen, the potency of the televised medium, the rule of caution applicable to the press with regard to identification of person regarding coverage of early stages of criminal investigations and the fact that, although aware of an autopsy report made available on 24 May 2000 revealing that the murders had involved rape, TV2 had in the evening news of that date continued to focus on the applicant notwithstanding the fact that his 1988 criminal conviction had not concerned sexual offences. TV2 had also been the first medium to insinuate suspicion against the applicant and to identify him in its broadcasts and had taken the lead in this regard. On 19 February 2007 the Appeals Leave Committee of the Supreme Court refused TV2 leave to appeal.

The Court observes that no public authority had ‘charged [the applicant] with a criminal offence’, in the Banehia case, within the meaning of Article 6 § 2 of the Convention (cf. Allenet de Ribemont, cited above, §§ 34–37; Kyriakidesv. Cyprus, no. 39058/05, § 35, 16 October 2008). While the information concerning the applicant in relation to the investigation in the Baneheia case had in part been provided by the police, it was the coverage by Fædrelandsvennen on 24 and 25 May 2000, not the statements by the police, which was at the heart of the matter before the national courts. In any event, the disputed newspaper publications did not amount to an affirmation that he was guilty of the crimes in question. In the Court's view, Article 6 § 2 was inapplicable to the matters complained of. Accordingly, this part of the application must be declared inadmissible as being incompatible ratione materiae under Article 35 §§ 3 and 4 with the provisions of the Convention.

However, the conclusion above does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65).

The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage, on account of the hardship he had suffered following the news coverage by Fædrelandsvennen. It had delayed his reintegration into society and he had still not fully recuperated. He requested the Court to take into account that as a result of the media stir he had lost his job and had started to live in a tent, being scared away from society. Whilst he had not provided documentary evidence for his monetary losses, he requested that such losses have a bearing on the assessment of the size of the award for non-pecuniary damage.

The Government were of the opinion that the amount claimed was excessive.

The Court, assisted by the size of the award proposed by the dissenting members of the Supreme Court (see paragraph 101 of the dissenting opinion, quoted at paragraph 33 above) and making an assessment on an equitable basis, awards the applicant EUR 19,000 in respect of non-pecuniary damage.

The applicant also claimed (a) NOK 388,471.61 (NOK 1,180,630.12 less the NOK 792,158.51 granted in free legal aid by the national legal aid authority) for the costs and expenses incurred before the domestic courts. (b) Moreover, he claimed NOK 150,000 (approximately EUR 16,000) (inclusive of value added tax) for legal costs incurred in the Strasbourg proceedings.

As to item (a), the Government were of the view that awarding any sums beyond that granted in national legal aid was not warranted in the circumstances. Item (b) appeared excessive in the absence of any further specification.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 12,500 for the proceedings before the Court.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.