judge of the European Court of Human Rights

Aleš Pejchal

Ladies and Gentlemen,

I am greatly honored to contribute to an interesting discussion about freedom of speech and protection of privacy before this forum in this beautiful place. When I was thinking about my presentation, I concluded that it must be both legal and journalistic. It is up to you to assess to what extent I was successful.

I will tell you a story about a very successful prime minister and also two journalists and members of a tribunal established by parliament, but first and foremost, members of human community. Because human community is most important in cases concerning the protection of freedom of speech. On a deserted island its one and only citizen can shout whatever he wants, and he needs no protection. There is nobody who would protect him and nobody who would listen to him and could possibly feel outraged by his words.

It is remarkable that it was actually former Syrian slave Publilius Syrus, who in Ancient Rome in the first century B.C. articulated a great idea: „Sibi primum auxilium eripere est leges tollere.“ ”Obstructing the law means depriving ourselves of the basic protection.“ This extraordinary idea will take us through the whole story. But let’s get back to the main heroes of my tale.

Mr. Bartholomew Patrick Ahern was the head of the Irish government for a very long time, from 1997 to 2008. During his premiership Ireland was nicknamed “The Celtic Tiger”. The national economy was unbelievably thriving, and the Prime Minister was literally a darling of satisfied citizens almost until his bitter end.

Twenty years before becoming the Prime Minister, Mr. Ahern was a Member of Parliament, he had rather big experience in the government, first as the Labor Minister, and later in a much more significant position as the Finance Minister. And in the period when he was responsible for the national budget, some financial transactions were made which, metaphorically speaking, have later broken his neck.

But let’s not run ahead of events. It is necessary to note here that during his premiership, he paid several visits to the Czech Republic. First, President of the Senate of the Czech Republic at that time Petr Pithart received him in the Senate on 21 April 2004. The Irish Prime Minister delivered a speech in the Senate on the expansion of the European Union which was, as all of us know, very topical for the Czech Republic in 2004. But it was no coincidence that it was just Mr. Bertie (as he was familiarly referred to) Ahern to address the Czech Senate. Ireland was presiding over the European Union at that time.

Almost a month later, 20 May 2004, Mr. Ahern came to Prague again, this time to meet with his EU colleague, Mr. Vladimír Špidla, the Czech Premier at that time. The topic of their discussion was not an ordinary issue, but the question of the adoption of the Constitution for Europe; just a year before the citizens in France rejected the draft of this Constitution in a referendum on 29 May 2005, and two days later, on 1 June, the same did the citizens in the Netherlands.

However, let’s get back to Ireland; Mr. Ahern was somewhat more important there than in the Czech Republic. But if you browsed through the Internet you would have found out that on 6 May 2008 the Irish Prime Minister involuntarily left his post. Most readers would certainly be happy about the explanation which journalists released on the server “Lidovky.cz“. I quote:” The details about Ahern’s transactions were first published by The Irish Times in the spring two years ago. At that time the Premier confessed that he had received untaxed financial gifts from at least 39 businessmen, but he denied that he had done anything that would be illegal “. This is to say that journalists allegedly made the Prime Minister resign because of suspected corruption.

But the reality was slightly different. In 2006 a remarkable story, concerning Mr. Ahern, began to develop, the end of which was written by the the European Court of Human Rights on 30 September 2014.

Before we get to the two journalists mentioned above, I should briefly mention the so-called Mahon Tribunal. Under the Tribunals of Inquiry (Evidence) Act of 24 March 1921, meaning simply under the act on inquiry tribunals, as amended, the Irish Parliament founded such an inquiry tribunal in 1997 in order to investigate into the alleged corruption of politicians in connection with planning a developer construction in the Dublin area.

I cannot avoid pointing out that the respective 1921 legislation was issued before the conclusion of the Anglo-Irish Agreement of 6 December 1922 under which free Irish state separated from Northern Ireland which continued to be part of the United Kingdom. However, the tribunal established in 1997 was obviously the tribunal of the Irish Republic. And the name Mahon Tribunal was coined because its last President was Judge Mahon. The tribunal had all investigative powers which belong to the High Court, including the summons and examination of witnesses, or the request to submit written documents.

The Inquiry (Mahon) Tribunal immediately began to work very hard; from November 1997 to March 2012, the estimated investigation costs were almost three hundred million EUR. It was the longest and most expensive investigation in the Irish Republic.

And finally, it is back to the two journalists: In 2006 Mr. Colm Keena was 46, and Ms. Geraldine Kennedy was 55. Both were undoubtedly experienced journalists. At that time, he was a political affairs reporter, and she was the editor at The Irish Times. The tribunal discovered an important clue for its investigation. On 29 June 2006 it wrote a strictly private and confidential letter to Mr. K., who was a businessman and also a friend of Prime Minister Ahern, asking to explain some payments, especially to whom they were paid and why. The issue were the payments from the end of 1993, at the time when Mr. Bertie Ahern was the Finance Minister. Mr. K. answered the questions posed by the tribunal through his attorney.

Now comes a version of journalists which can be neither confirmed nor disproved. All of a sudden, a copy of the whole correspondence between Mr. K. and the Inquiry Tribunal allegedly appeared on Mr. Colm Keena’s table on 19 September 2006. The copies were delivered anonymously.

Colm Keena informed editor Geraldine Kennedy. The decision was unambiguous. Check what you can and release it. I suppose 99% journalists would do the same.

At this stage I need to make a comment. Have the journalists proceeded like watchdogs of democracy and the rule of law? Have they discovered anything new as regards the Prime Minister of Ireland by deciding to publish part of the investigation of a completely independent, professional, democratic institution which had very good reasons not to publish anything at the moment? I will not answer the question but will continue with my story.

On 21 September 2006 the whole Ireland and the entire world could read an article in The Irish Times with an explosive headline: “Tribunal Investigates Payments to the Premier.“ The article was based especially on the letter from the tribunal to Mr. K. Whole passages from the letter were used. The author of the article said that Mr. K. was just one of several developers who had offered bribes estimated at 50 – 100 thousand EURO to Mr. Ahern when he was the Finance Minister. In the article, Mr. K. and the Premier refused any bribes.

This was the moment of the real start of the case which had its final sequel at the seven-member senate of the European Court of Human Rights. This was the tipping point of the events. On the day, when the article was released, the tribunal sent a letter to Geraldine Kennedy expressing concern over the fact that the newspaper had published materials which were strictly private and confidential, and which were labeled as such. It said that publishing these confidential documents before they were assessed in the appropriate procedure, harmed the work of the tribunal and the rights of those who were mentioned in the article. It also noted that it had the right to appeal to the relevant court in this matter.

On the same day, Mr. K.’s attorneys approached the lady to protest that the mentioned article infringed his rights. A legal war flared up on all possible battle fronts. As regards the Convention on the Protection of Human Rights and Fundamental Freedoms, it was a fight between Article 8 and Article 10, i.e. between the protection of privacy and freedom of speech.

Ms. Kennedy sent a cold answer to the tribunal the next day. Yes, The Irish Times received anonymously a copy of the correspondence mentioned in the article. However, she considered it a matter of public interest to verify and publish everything. Of course, she fully recognized the fact that the tribunal is an important public authority, but the newspapers were obliged to inform the public.

The tribunal objected and released an order on 26 September 2006 for journalists to give to the tribunal all documents which served as the basis for the published article. Ms. Kennedy answered the same day that all the documents had been destroyed following consultations with legal experts.

The tribunal decided to summon both journalists on 29 September 2019. The journalists obliged and appeared before the tribunal. Nothing more was revealed than the earlier explanation that the materials had been destroyed. Ms. Kennedy only explained that as the editor, she had given the instruction to publish the article because the tribunal could decide that the facts it had discovered about the payments to the Prime Minister would be outside its jurisdiction, and as a consequence nothing would have been published.

Of course, it was then the courts’ turn. The tribunal had to appeal to the court; meanwhile, journalists were quite at ease. After all, the published article on the Prime Minister was literally a megahit.

First of all, the tribunal had to assess the situation and decide how to proceed. It happened on 5 October 2006. The three-member tribunal arrived at the conclusion that the behavior of journalists discredited its work and the tribunal had no power to impose any penalty. Therefore, it had to appeal to the High Court to protect its integrity and the public confidence in its work. The media accused the tribunal of the leak of information. But all tribunal members were convinced that it was out of the question. Therefore, in the interest of the credibility of the tribunal it was necessary to identify the originator of the information leak, which the journalists precluded by scrapping the documents which could lead to discovering all necessary facts. The tribunal’s activity could not make the impression that it would harm the interests of any involved party.

The action was filed on 13 February 2007. The arguments of both parties did not change much. The tribunal claimed that its work could not allow the questioning of the integrity of persons who were investigated, and that is exactly what happened by publishing leaked information. The Irish Times, through Ms. Kennedy and Mr. Keena, adamantly defended any hint of breaking the protection of their source.

The High Court verdict of 23 October 2007 concluded that the Tribunal had the right to investigate and to find how the information leak had happened.

The most difficult thing was to assess the balance between the functioning of a democratically established tribunal and the freedom of speech of journalists which included the refusal to publish the source of information. In this respect, the High Court concluded that the rights and interests of the third party had to be taken into account. It obviously acknowledged that journalists are not obliged to reveal the source of information, however, the court had the authority to assess all facts and circumstances. By destroying the required documents, the journalists assumed the position of judges who decided the case entirely in their favor, irrespective of the rights and interests of the third party. The High Court described the behavior of journalists as a flagrant violation of the rule of law because they cannot stand above the law and usurp the function of the court, as it happened in this case. The journalists appealed to the Supreme court. The verdict of 31 July 2009 is very interesting. The journalists neither won nor lost. Many years on, Ms. Geraldine Kennedy called it a Pyrrhic victory.

The Supreme Court basically satisfied the journalists’ appeal and rejected the tribunal’s complaint. It criticized the approach of the High Court concluding that it had been too strict. It was too much focused on the reprehensible acts of journalists destroying the documents and thus depreciating to a certain extent the privilege of journalists not to reveal their source of information. But it admitted that the court had to honor journalistic privileges, but on the other hand no citizen, including a journalist, had the right to request the exclusion from a legal process.

However, in this verdict, the Supreme Court did not make a decision on the issue of the statutory costs, it stipulated that the issue would be dealt with separately. With a little bit of phantasy, this decision could be expected to stack the cards…

And the Supreme Court took its time. On 26 November 2009 it released a comprehensive decision which did not spare journalists at all. According to the Supreme Court decision, journalists took the role of arbiters about a proper balance between the relevant interests and rights. The act of scrapping the documents shifted this balance one-sidedly to the benefit of journalists. This criminal, purposeful conduct of journalists deprived them, according to the Supreme Court, of the usual expectations that in case of success in the subject, the statutory costs would be paid to them. The tribunal was competent to conduct investigation which was, to a certain extent, thwarted by the conduct of journalists, and it was fully authorized to appeal to the High Court. And, according to the opinion of the Supreme Court, in this quite exceptional situation, the Supreme Court imposed on the journalists, or rather The Irish Times, the duty to pay all the statutory costs to the tribunal of both the High Court and the Supreme Court procedures.

The tribunal evaluated the costs almost a year later, in October 2010. The amount was exorbitant, 393 055, 42 EUR. However, the amount was the subject to review and assessment of the Taxing Master of the High Court. The proceedings on the assessment of the amount of the statutory costs were suspended; and I am sorry I do not know what the final amount actually was.

But before the evaluation of the statutory costs was made, Ms. Kennedy and Mr. Keena appealed to the European Court of Human Rights on 19 May 2010.

The journalists complained pursuant Article 10 of the Convention on the Protection of Human Rights and Freedoms, that their right to protect their journalistic sources were violated. They claimed that the infringement had neither an evident nor an appropriate legal basis, it did not follow any of the legitimate aims acknowledged in Article 10, paragraph 2 of the Convention, and as such could not be considered necessary in a democratic society. Pursuant Article 6 of the Convention, the journalists also complained that imposing the statutory costs on them as the successful party was unfair, inappropriate, and arbitrary. They invoked a violation of Article 13 of the Convention that they had no effective instruments of remedy in accordance with the convention. Referring to Article 1 of Protocol No.1 of the Convention, they also complained that the decision on the statutory costs imposed on them violated their ownership rights. Finally, under Article 14, in connection with the articles of the Convention I already mentioned, they pleaded that they had been exposed to unjustified different treatment than persons in a similar situation.

You can look up the decision of the Senate of the 5th Section of the European Court of Human Rights from 30 September 2014 on the webpages of the Council of Europe. Therefore, I will cut a long story short.
It should be noted that all proposals of the complainants were rejected as clearly unfounded. And the complaint was declared inappropriate by the majority decision of the members of the Senate in which I was also sitting.

We need to realize that the point of the complaint was the duty to pay the statutory costs, and according to the journalists, it was the violation of several articles of the Convention on the part of the High Contracting Party, and especially an unfortunate infringement of freedom of speech. And so, from the reasoning of the decision of the Senate, it will be probably most important to mention only several crucial principles which were important for the decision:

• Only after the Tribunal hinted at its right to appeal to the court and after it ordered to submit the documents, the complainants – journalists decided to scrap the evidence which was the basis for the court decision on questionable public interests.
• The complainants had the protection of courts to be able to defend their rights.
• All persons must respect the role of the courts and no one, including journalists, should usurp the judicial function.
• Finally, the European Court of Human Rights presumed that the real purpose of the decision of the Irish Supreme Court was to send a signal that no party is above the law and legal jurisdiction of courts.

I did not tell you this story because of the final decision of the European Court of Human Rights. This story conceals many more questions which are important to discuss in relation to freedom of speech and protection of privacy of individuals. You would hardly find any similar story featuring a successful prime minister, excellent journalists, an investigation tribunal established by the parliament, national courts, and finally an international court. Therefore, let me complete my story with two observations.

The High Court took a decision at a time when Mr. Ahern was the Prime Minister. The Supreme Court took a decision after Mr. Ahern’s resignation. It may not be important, but it definitely is interesting. The other observation is deeper. Mr. Ahern did not resign in September 2006 following the release of those documents which were mysteriously leaked during the investigation by the tribunal which was established by the Irish Parliament. In 2007 Mr. Bertie Ahern led his party in the election campaign again, and despite all news articles and suspicions he won the election and became the Irish Premier for the third time in succession.

In February 2008 Mr. Ahern was investigated by judge Mahon again. There was a fierce exchange of views. Mr. Mahon was an excellent investigative judge. The Prime Minister lost his nerve and admitted that there had been some money sent to the account of his former partner Celie Larkin as a loan. In March former secretary of Mr. Ahern, Ms. Gráinne Garruth was unable to bear the weight of evidence, and so she admitted that some money had been deposited on the account of her former boss. Well, the two ladies and an excellent judge stood behind the fact that the Prime Minister was unable to deal with the old sins, and, on 2 April 2008 he announced his resignation as of 6 May 28, while the journalists continued to be engaged in a lawsuit.

What are the fates of our heroes today?

Mr. Bertie Ahern is 68, he is no longer engaged in politics but in February 2015 he won the honorary title of Doctor of Laws at Washington College in Chestertown, Maryland.

Mr. Colm Keena is 59, and he is still a journalist at The Irish Times.

Ms. Geraldine Kennedy is of the same age as Mr. Ahern. She is no longer a journalist at The Irish Times. In August 2012 she was appointed the associate professor of journalism at the University of Limerick. She received the total of five honorary doctorates from Irish universities.

Mr. Alan Mahon is also 68. After four years in the post of a judge at the court of appeal, the Irish government nominated him for the position of the ombudsman of the defense forces in 2018. He assumed the position on 6 July 2018 for the period of three years.

And the Irish community? All of us would probably agree that the period of the Celtic tiger is past history.

I have tried to tell you a story which, in my view, deserves a significant place in law textbooks as well as textbooks on journalism. The questions it evokes, the lessons we can learn, may be more important than the verdicts and decisions I mentioned and in one of which I was involved.

Thank you very much for the attention you paid to this story.