FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41410/02 by Antero IGNATIUS against Finland

The European Court of Human Rights (Fourth Section), sitting on 17 January 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 11 November 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Antero Ignatius, is a Finnish national, who was born in 1946 and lives in Espoo . He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents, may be summarised as follows.

Background

The applicant ’ s clients were suspect ed of, inter alia , alleged dishonesty as debtor s in respect of a company that was in the process of being wound-up. However, on 22 September 1994 the public prosecutor decided not to bring charges against them. Meanwhile in early 1994, the company and the tax authorities brought a compensation claim against the applicant ’ s clients before the District Court ( käräjäoikeus, tingsrätten ) of Helsinki .

In May 1994 before the court , the applicant in his capacity as counsel presented a document according to which he had, acting for his clients, made a report to the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ) on the official receiver of the above company and two tax officials, X and Y , accusing the two last-mentioned o f having committed aggravated abuse of off ice relating to the company ’ s taxation .

On 10 November 1994 the District Court rejected the compensation claim. The judgment was upheld by the higher courts.

Subsequently, the official receiver and X and Y reported the applicant to the police alleging libel.

District Court

On 8 May 1996 t he public prosecutor charged the applicant with three counts of libel.

On 10 March 1999 the District Court , having held an oral hearing, convicted him as charged and sentenced him to pay a fine and ordered him to pay damages and legal costs.

Court of Appeal

The applicant appealed to the Helsinki Court of Appeal ( hovioikeus, hovrätten ). On 17 and 18 January 2001 the court held an oral hearing.

On 15 November 2001 the cou rt rejected the charges concerning the alleged libel of the wound-up company ’ s official receiver , reduced the sentence to a fine amounting to FIM 3,480 (EUR 585) and reduced the damages to FIM 20,000 (EUR 3,363). The applicant was ordered to pay the legal costs of X and Y amounting to FIM 53,686 (EUR 9,029).

The court t hus upheld the conviction insofar as the District Court had found the applicant guilty of having libel le d the tax officials by accusing X of having brought considerable pressure on the tax inspection unit with a view to obtaining an unlawful tax assessment and to furthering the commission by the official receiver of certain unlawful acts, for instance, as regards the obtaining of an unreasonably large fee from the company. The applicant was found to have libelled Y by accusing him of having furthered the commission by the official receiver and X of some unlawful acts. As to the alleged libel of the official receiver, the court found that the applicant had had well-founded reasons to make the allegations in question.

The court noted that the public interest required that there be a wide freedom to express criticism in judicial proceedings. It had been the applicant ’ s fundamental right to express criticism on behalf of his clients in the above proceedings. As to the tax officials in question, the court considered that in their capacity as civil servants they were expected to tolerate criticism directed at their exercise of powers. Nonetheless, the case should be assessed in a different manner when it was alleged that a civil servant had committed an aggravated offence, which was a particularly contemptible offence and one which could lead to a severe sentence and dismissal. The court also noted that the more serious an allegation, the more care must be exercised to ensure the accuracy of it. In the present case, the applicant had not put forward any grounds for his allegations against X and Y.

Supreme Court

On 16 May 2002 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

A person who s preads false information or a false insinuation about another person conducive to causing damage or suffering to that person, or subjecting that person to contempt, or who makes a derogatory comment about another otherwise than in a manner referred to above shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months. Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to above (section 9 (531/2000) of the Penal Code) .

COMPLAINTS

1. The applicant complain ed , under Article 10 of the Convention, that his right to freedom of expression has been violated in that he was punished for putting forward arguments with a view to defending his clients ’ interests.

2. He also complain ed , under Article 6, that the sanction violated the right [of his clients] to a fair trial and under Article 13 that, given the fact that he was punished for putting forward arguments, his clients had no effective remedy against the plaintiffs in the above-mentioned proceedings.

THE LAW

A. Article 10 of the Convention

The applicant allege d a violation of his rights under Article 10 of the Convention in that a measure he had taken in his capacity as counsel and in the course of judicial proceedings led to a criminal conviction and an order requiring him to pay damages.

Article 10 of the Convention reads as follows:

“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 ...

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.”

The Court finds that t he applicant ’ s conviction for libel committed against the tax officials amounted to an interference with the exercise of his right to freedom of expression .

An interference contravenes Article 10 unless it is “prescribed by law”, pursues one or more legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” for achieving such an aim or aims.

The Court finds that the interference was based on the relevant provision of the Penal Code as in force at the material time. It was thus “prescribed by law”. The Court further notes that the interference pursued the legitimate aim of protecting the reputation and rights of the tax official s. The question remains whether the interference was “necessary in a democratic society” in pursuit of the said legitimate aim.

In the case of Nikula v. Finland (judgment of 21 March 2002 , Reports of Judgments and Decisions 2002-II , §§ 44-45 , see also Kyprianou v. Cyprus [GC], no. 73797/01, § 173-174 , 15 December 2005 ) the Court stated the applicable principles as follows, case-law references omitted:

“44. 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 she made them. In particular, it must determine whether the interference in question was ‘ proportionate to the legitimate aims pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ . In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.

45. The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (...).”

The special duties of lawyers led the Court to conclude in the same judgment that, in certain circumstances, an interference with counsel ’ s freedom of expression in the course of a trial might raise an issue under Article 6 of the Convention with regard to the right of an accused client to receive a fair trial ( loc. cit. , § 49).

The Court would also observe that counsel in their capacity as officers of the court are not only subject to restrictions on their conduct, as pointed out in the Nikula judgment; they also benefit from exclusive rights and privileges which may vary from jurisdiction to jurisdiction – among them, usually, a certain latitude regarding arguments used in court – but their conduct must be discreet, honest and dignified ( Casado Coca v. Spain , judgment of 24 February 1994, Series A no. 285-A, p. 19, § 46).

The Court observes that the applicant lawyer had accused civil servants of having committed serious offences in office. It reiterates in this context that the limits of acceptable criticism may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals (see Nikula , cited above, § 48). However, civil servants are not deprived of all protection against offensive and abusive verbal attacks in relation to the exercise of their duties (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I).

In the present case, the criticism was strictly limited to the actions of X and Y in their capacity as tax officials, as distinct from criticism focusing on their general professional or other qualities. The applicant was convicted o f having accused them of unlawful conduct in their profession without having showed that there had been grounds for his allegation . The Court considers i t clear that his statements were of a nature to discredit conscientious tax officials such as X and Y claimed to be.

Turning to the reasoning of the domestic courts, the Court notes that the Court of Appeal acknowledged that the public interest required a wide freedom of expression and criticism in judicial proceedings, but it also stressed that where criticism involved the making of serious allegations, special care had to be exercised to ensure the accuracy of the allegations made. It found that the impugned statements concerning X and Y did not meet that criterion. The Court finds that the national courts were entitled to conclude that the necessary care had not been shown.

Further, the Court considers that the relatively modest amount of the fine imposed is also relevant to the proportionality of the interferene with the applicant ’ s Article 10 rights (see Kyprianou v. Cyprus [GC], cited above , § § 181-183) . In the present case neither the conviction nor the fine imposed or the damages the applicant was ordered to pay can be regarded as disproportionate to the legitimate aim of protecting the rights of others.

Thus, the Court considers that the interference was proportionate and that the reasoning by the courts to justify it were relevant and sufficient.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Article 6 of the Convention

The applicant also alleged a breach of Article 6 § 1:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that an interference with counsel ’ s freedom of expression in the course of a trial may raise an issue under Article 6 with regard to the right of a client to receive a fair trial. Equality of arms militates in favour of a free and forceful exchange of argument between the parties. Turning to the present application, the Court observes, however, that the applicant ’ s clients in the domestic proceedings are not applicants before this Court.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

C. Article 13 of the Convention

The applicant alleged a breach of Article 13 of the Convention in respect of his clients.

Article 13 reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant ’ s clients in the domestic proceedings are not applicants before this Court.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President