CONCURRING OPINION OF JUDGES KOSKELO AND EICKE

1. We agree with our colleagues that there has been a violation of Article 10 of the Convention in the present case. We have, however, certain reservations regarding the reasoning that has been adopted in the judgment to arrive at the outcome.

Lawfulness of the interference

2. At the outset, we hesitate to endorse the conclusion that the domestic law which was applied in the present case as the basis for the applicant ’ s criminal conviction satisfied the requirements of the “quality of the law” as set out in the Court ’ s case-law. The applicant was charged with, and convicted of, disclosing the identity of her granddaughter in breach of the confidentiality of the administrative proceedings conducted before the K. Welfare Centre (see §§ 20, 30 and 39 of the present judgment). The penal provision applied provides for the punishment of anyone “who, without authorisation, discloses what he or she has learnt in ... administrative proceedings ... and what, pursuant to the law or a decision based upon the law, is deemed to be confidential” (see § 44 of the present judgment). According to the Administrative Procedure Act (Article 150(2) as cited in § 48 of the present judgment), the official conducting the proceedings may close either all or part of the oral hearing to the public, if (inter alia) relations within a family have to be discussed. It is obvious that the identity of her grandchild as such was not something the applicant “learned” in those administrative proceedings. Moreover, by discussing, as a party to the case, the course and conduct of the proceedings in public with her own identity disclosed, the identity of the grandchild would probably not have remained secret even if the latter ’ s name had not been directly disclosed.

3. Thus, under the circumstances of the case, it is not clear what actually constituted the punishable conduct and how the specific facts could be subsumed under the domestic provisions. Accordingly, it seems doubtful whether it was foreseeable to the applicant, or another person in a similar position, that he or she could be held criminally liable for the facts as set out.

Lack of balancing

4. As regards the issues of necessity/proportionality of the interference, the present case is basically a fairly simple one. The crux of the matter is that the domestic courts failed to engage in any balancing exercise as required by the Court ’ s case-law in situations of conflict between the applicant ’ s rights under Article 10 on the one hand and the rights of another person, in this case the grandchild, under Article 8 on the other hand. This deficiency in the approach taken by the domestic courts dealing with the charge brought against the applicant is at the root of the problem.

5. The manner in which proceedings relating to the care and custody of a child are conducted in situations such as those at stake in the present case, where an infant has been orphaned through an accident, is undeniably a matter of legitimate public interest, in relation to which relevant problems and issues may undoubtedly be raised and brought to light through the discussion of particular proceedings. The key issue therefore is to what extent, and how, the necessity of ensuring proper protection of the rights of the child concerned requires and justifies restrictions on the manner in which a party may exercise his or her freedom of expression by engaging in public discussion relating to a specific case in which he or she is involved. In the present case, the domestic courts dealing with the criminal charge brought against the applicant following a complaint by the child ’ s uncle, whose continued custody of the child was the subject of the administrative proceedings in question (as well as court proceedings), convicted her without addressing these questions as required under the Court ’ s established case-law. Hence, there has been a violation of Article 10.

6. In this context, it is perhaps also worth noting that the Court has already had to deal with a case in which an individual ’ s right to exercise his freedom of expression in relation to a criminal case prosecuted against him was at issue under circumstances where the competing consideration were the privacy rights of his children, as victims (see Yleisradio Oy and Others v. Finland ( dec. ), no. 30881/09, 8 February 2011). The background of this case was that a person had been convicted of sexual abuse of his two minor children in criminal proceedings which had been declared confidential on the grounds of the need to protect the victims. The court ’ s order entailed, inter alia, that both the casefile and the judgment were declared confidential apart from the operative part of the conviction. After his conviction, the defendant was interviewed on national television in a programme addressing issues relating to the rights of defence in criminal proceedings of this nature. In this context, his identity was not entirely concealed (he appeared with his face and with his forename disclosed). This prompted a criminal complaint by the victims, on the grounds that the convicted father, by discussing his prosecution and conviction in public, thereby also revealed, albeit indirectly, the identity of the children as victims. Charges were brought against the man as well as the journalists in charge of the TV show. In these proceedings, following a balancing exercise by the Supreme Court as the final instance, the defendants were convicted of dissemination of information violating the personal privacy of the victims. This case was precisely about the conflict between freedom of expression – of the convicted individual and the journalists who published his interview – and the Article 8 rights of the children, in this case victims of a serious crime, whose identity had not been expressly disclosed but whose privacy was compromised by the fact that their convicted father had chosen not to give his interview “ incognito” . The balancing performed at the domestic level was subsequently endorsed by this Court, which dismissed the complaint as manifestly ill-founded. Thus, this case is an illustration f rom previous case ‑ law to the effect that it may be legitimate to enforce certain restrictions on the freedom of expression even in the context of a convicted person discussing his own case, on the grounds of the competing need to ensure protection for the privacy rights of the victims.

7. Accordingly, the above case serves to underline yet further the basic problem in the present case, namely the lack of any specific balancing exercise conducted at the domestic level.

8. Finally under this heading there are two aspects of this case which are particularly striking arising out of the fact that the domestic measures and proceedings only focussed on the applicant and her conduct in the context of the TV programme in which she was interviewed. The first is that, while it is obvious under the circumstances that the applicant must have provided the documents with which she appeared in the TV studio, it is a separate question how it actually came about that the child ’ s name, as picked out from those documents, was displayed on the TV screen. It is difficult to see any justification for the fact that the role played by the journalists in charge of the programme, as the professionals in the field, was not addressed in this context. Instead, the applicant alone was prosecuted as a result of what took place in the course of the TV interview whereas the responsibility incumbent on the journalists was not taken into consideration. The second is that it is clear from the evidence that, before the television show in question (on 7 April 2010), the child ’ s case had already been discussed in detail and the child ’ s name given, including by the director of the K. Social Welfare Centre responsible for conducting the very administrative proceedings concerning the custody of the child treated by the domestic criminal courts as having been “confidential” (§§ 11 and 12).

The significance of the best interests of the child

9. The judgment devotes plenty of attention to the principle of the best interests of the child. The manner in which this subject-matter is addressed, however, gives rise to certain reservations. Without contesting the importance of the general principle that the best interests of the child must be taken into account, it is somewhat incongruous to focus on the requirements of the best interests of the child in a case where the core problem is that no other consideration was taken into account than the one which underlies the secrecy of the childcare proceedings, the breach of which led to the applicant ’ s conviction. In the final analysis, these passages in the judgment are therefore plainly obiter dictum . This is, of course, even more so as the domestic criminal courts at no stage appear to have made any reference to having considered the best interest of the child in question whether as a primary consideration or at all.

10. More importantly, the general statements made regarding the principle of the best interests of the child do not in all respects appear sufficiently clear. The judgment purports to assert a wholesale transposal into the ECHR framework of the tenet derived from the UNCRC according to which the best interests of the child must be taken as a primary consideration in any decision directly or indirectly concerning children (§§ 63, 97-99). The ECHR, however, is an instrument enshrining a specific set of human rights and fundamental freedoms, some of which are of an absolute character whereas others very often involve, according to well ‑ established case-law, the assessment and balancing of various competing rights and interests. In the context of the Convention, therefore, it is not plausible to suggest, in such broad and sweeping terms, that whenever children are directly or even indirectly concerned, their best interests are a primary consideration which may “not be put on the same level as all other considerations” (§ 99). It cannot be argued, for instance, that in the context of the application of Articles 2, 3, 5 or 7 the best interests of a child could operate as a limitation of someone else ’ s rights under the said provisions which otherwise would not be permissible; the absolute nature of the rights involved may not be diluted although it might be in the best interests of a child to do so. For an illustration in concrete terms: in a Gäfgen type of scenario, the consideration of the child ’ s best interests did not then, and would not now, affect the application of Article 3 (see Gäfgen v. Germany [GC], no. 22978/05, § 107, ECHR 2010, where the Court held that the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities to safe a child ’ s life). Or, to take another example from the context of Article 7, a criminal court would not be justified in deviating from the principle of nullum crimen sine lege even if it were in the best interest of a child victim to do so. In the latter situation, the demand to accommodate the best interests of children would instead require a response by the legislator.

11. The key point is that the consideration of a child ’ s best interest in the application of the Convention must take place within the legal parameters set by its own provisions. Therefore, even when the best interests of children are directly or indirectly at stake, the specific weight to be given to them in relation to the other considerations which impose themselves must depend on the context.

12. In the same vein, it cannot plausibly be suggested that the best interests of children could operate as some sort of blanket restriction or an overall constraint on the right of freedom of expression under Article 10 whenever such interests are at stake, whether directly or indirectly. In the application of Article 10, the fact that the best interests of a child are affected will not remove the need for a balancing exercise.

13. As stated above, the crux of the present case lies precisely in the fact that no balancing was undertaken at all in the criminal proceedings against the applicant at the domestic level. The affected child ’ s interests are an important element in the necessary balancing, but the proper resolution of the conflict between the competing rights nonetheless requires a careful, contextual and specific assessment.

14. In sum, overstating the role which the best interests of children are legitimately capable of playing in the application of the various provisions of the Convention by broad and sweeping general statements is not very helpful and, in fact, risks being misleading. In the present case, the secrecy obligation held to have been imposed on the applicant may indeed have been intended (though there is no evidence before this Court either way) to protect the interests of the child (as well as those of other family members). Yet we are unanimous in concluding that the grandmother ’ s criminal conviction in the present circumstances gave rise to a violation of her rights under Article 10.