FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29172/02 by Pertti Antti Tapio VIROLAINEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 14 September 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Ms L. Mijović , Mr D. Spielmann , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 22 July 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pertti Virolainen, is a Finnish national, who was born in 1939 and lives in Espoo .

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.

On 4 April 1996 lawyer K. submitted to the District Court ( käräjäoikeus , tingsrätten ) of Joensuu an application for a summons against ten persons, including the applicant (also a lawyer), requesting their punishment for alleged false denunciation “ despite better knowledge” ( vastoin parempaa tietoa tehty perätön ilmianto , osann angivelse emot bättre vetande ) and libel on several counts, and demanding damages. K. maintained that the applicant had participated in a campaign of false accusations against him , allegedly caused by the fact that K. had tried to recover unpaid fees from his former clients .

In an appended indictment ( including charge no. 1.2) K. maintained that , while representing H. , the applicant had, despite better knowledge, on 1 June 1995 reported an offence against K. alleging aggravated fraud, aggravated extortion ( kiristys , utpressning ) , misuse of a position of trust ( luottamusaseman väärinkäyttö , m issbruk av förtroendeställning ) and forgery. According to K. , the applicant , in his report of offence s , had claimed that K. had overcharged one of his client s , intentionally lost his clients ’ case s and caused them damage , and forged the signatures of his client s to several power s of attorney (a public prosecutor had on 26 February 1996 waived charges against K.).

In the indictment (including charge no. 2.2) K. also demanded punishment of the applicant on five counts of alleged false denunciation and five counts of alleged libel. K. maintained that, while representing several of his clients, the applicant had , despite better knowledge , on 1 4 February 1995 reported an offence against K. and accused K. of several offences, namely forgery, misuse of a position of trust, breach of consumer credit regulations ( kulutusluottorikos , konsumentkreditbrott ), slander and profanation of the memory of a deceased person ( kuolleen miehen muiston häpäiseminen , skymfande av död mans minne ) . K. also accused the applicant of having given false information and putting forward false allegations to the police in the subsequent criminal investigation s conducted against K. (a public prosecutor had on 19 February 1996 waived charges against K.).

Based on the remaining issues in the reports of offences submitted by the applicant, a public prosecutor pressed charges of embezzlement and attempted fraud against K.

On 24 April 1996 the District Court served a writ of summons on the applicant. It noted that it had transferred the examination of the indictment s against two co-defendants to separate criminal proceedings which were pending at the same time. The applicant received the summons on 3 May 1996 .

On 12 June 1996 the District Court held the first hearing, in which K. ’ s indictment was discussed. A public prosecutor, present at the hearing, did not support the charges. The applicant was not present at the hearing due to a holiday trip abroad , of which he had informed the District Court in advance . K. requested an adjournment. The case was adjourned. The second hearing took place on 12 September 1996 .

On 17 December 1996 t he third hearing was held, in which the applicant was present. He contested the charges disputing the alleged facts and requested that these proceedings should follow the pending criminal proceedings against K. in order to better establish the facts. The applicant maintained that he had reported the offences against K. on his clients ’ , i.e. the co-defendants ’ , instructions , after verifying the facts with his clients and becoming convinced of the existence of probable reasons to suspect the offences . K. requested an adjournment, to which the applicant did not object.

The fourth hearing took place on 29 January 1997 . The case was apparently adjourned.

The fifth hearing was held on 1 2 February 1997 , and then , apparently adjourned.

On 20 January 2000 the applicant submitted his observations in reply to K. ’ s written statements of 3 and 5 January 2000 . According to the applicant, in his letter of 3 January 2000 K. “renewed his requests and the description of the alleged offences in broad outline [ pääpiirteissään ].”

According to the applicant, on 16 February 2000 the District Court sent a memorandum to the parties , which included K. ’ s indictment, corresponding to his application for a summons on 4 April 1996 .

A preparatory hearing was held on 25 February 2000 . The applicant was not present at the hearing. At that hearing the District Court prepared the examination of the criminal proceedings instigated by K. , as well as another set of criminal proceedings instigated at some point by one of the applicant ’ s co-defendant s against K. K. repeated his indictment as regards the allegedly unlawful report s of offence s submitted by the applicant on 14 February 1995 and 1 June 1995. The applicant ’ s writ ten observations, contesting these charge s (see above) , were included in the minu tes of the preparatory hearing.

On page 2 of the minutes of the preparatory hearing it was stated:

“K. specified that his indictment [ rangaistusvaatimus ] was based on those acts that the defendants ha d committed prior to the public prosecutor ’ s decision not to press charges.”

The District Court ’ s principal heari ng was held on five days on 5- 7 April and 10 - 11 April 2000 . The applicant was present on 5 - 7 April, partially present on 10 April (with the court ’ s consent) , and again present during the entire hearing of 11 April 2000 .

According to the minutes of the principal hearing (on pp. 6 and 11), K. presented alternative charges of libel “ without better knowledge” ( ei vastoin parempaa tietoa , icke emot bättre vetande ).

On page 5 of the minutes of the principal hearing count no. 1.2 was particularised, insofar as relevant, as follows:

“[A co-defendant H.] represented/advised/urged by [the applicant] and [the applicant] , have in a report of an offence drawn up by [the applicant] on 1 June 1995, which report was received by the Police of Joensuu on 29 June 1995, and in the subsequent pre-trial investigations , alleged without better knowledge ... . ”

On page 6 of the minutes of the principal hearing, it was further noted in connection with count no. 1.2 that:

“K. has based his indictment on all those acts that the defendants have committed in connection with the reports of offences prior to the public prosecutor ’ s decision not to press charges.”

On 25 April 2000 the District Court delivered its reserved judgment. It dismissed all charges concerning false denunciation. According to the District Court, the applicant had not deliberately given f alse information to the police. It however convicted the applicant of libel (charge 1.2) , committed “ without better knowledge”, based on his allegations presented in his final statement of 11 January 1996 to the police in previous pre-trial investigations , which according to the District Court were harmful to K. and which allegations the applicant had not proven to be correct. T he District Court noted that the applicant had in the final statement demanded that K. be charged with those offences reported by his client , and that at that point he had at his disposal the entire pre-trial investigation report , and could therefore not rely entirely on his client ’ s assertions.

As regards the second set of charge s of libel (no. 2.2) the District Court noted, inter alia , that the applicant had submitted to the police f inal statements of 31 August 1995 and 13 December 1995 in which he had maintained that K. was guilty of the offences reported on 14 February 1995 . The District Court noted that at that point the applicant had at his disposal the entire pre-trial investigation report. The District Court also took into account a report of an offence drawn up by the applicant on 22 May 1995 on his clients ’ behalf. It noted that the applicant, as a lawyer, should have been aware of the groundlessness of the allegations of forgery and misuse of a position of trust, and had, thus, committed libel “ without better knowledge”.

The District Court sentenced the applicant to 80 day-fines, amounting to 18,000 Finnish Marks (FIM; corresponding to 3,027 euros ( EUR ) ) and ordered him to pay, separately and jointly with a co-defendant , damages of FIM 20,000 (EUR 3,364) and legal expenses of FIM 40,000 (EUR 6,728 ) plus interest , and , separately, damages of FIM 20,000 plus interest .

On 8 June 2000 the applicant appealed against the entire judgment to the Court of Appeal ( hovioikeus , hovrätten ) of Eastern Finland complaining under Article 6 § 3 (a) of the Convention that the District Court had convicted him of offences wit h which he had not been charged and requesting , inter alia , an oral hearing (proposing three witnesses) . According to the applicant, K. ’ s indictment was insufficiently specified and had demanded punishment for false denunciation “ despite better knowledge” whereas the District Court had convicted him of false denunciation “ without better knowledge”, thus depriving him of a chance to defend himself. The applicant maintained that , despite the District Court ’ s minutes , K. had not presented alternative charges of “without better knowledge” during the principal hearing , and that had this occurred while he was absent on 10 April 2000 , it was in any case prohibited .

Further, the applicant complained that the final statements submitted by him to the police on 11 January 1996 (count no. 1.2) and on 13 December 1996 (count no. 2.2) were not mentioned in the indictments and that he had, thus, not been charged with libel in those regards. According to the applicant, the District Court ’ s conviction was entirely based on these final statements, which deprived him of a chance to defend himself . The applicant emphasised that K. ’ s indictment relied only on his reports of offences of 14 February 1995 , 22 May 1995 and 1 June 1995 .

He also complained that he had not been given an opportunity to defend himself against charge no. 1.2 insofar as the charge had been at the principal hearing expanded to concern “the subsequent pre-trial investigations” (see above) and “all those acts that the defendants have committed in connection with the reports of offences prior to the public prosecutor ’ s decision not to press charges.”

The applicant put forward that he had submitted the final statements to the police following the normal proceedings pursuant to section 42 of the Act on Pre-Trial Investigation ( esitutkintalaki , förundersökninglag ; 449/1987) and not with the intent of offending K. He maintained , inter alia , that he had not alleged K. ’ s guilt beyond what K. had himself admitted in the pre-trial investigations, and that he was entitled to rely on his client s ’ instructions and assertions. He had in fact in both cases requested the police to continue their investigations. He maintained that as the police had conducted four further witness interrogations and other investigative measures after his final statements , he did not have at his disposal the entire pre-trial investigation report s as the District Court had , according to the applicant, wrongly held . He complained that punishing legal counsel for pursuing their clients ’ cases would impede the public ’ s access to lawyers.

The applicant further maintained that the presiding judge had allowed K. to insult him during the trial several times which disclosed bias and rendered the trial unfair .

On 12 December 2000 the Court of Appeal, without holding an oral hearing, upheld the District Court ’ s judgment , accepting its reasons. It found an oral hearing manifestly unnecessary pursuant to Chapter 26, section 7, subsection 1 of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ; Act 661/1978) as the offences in the indictment were based on reports of offences and actions in the subsequent pre-trial investigations, which the Court of Appeal had at its disposal. It held that based on the evidence as a whole and the proposed topics for the witness examinations, an oral hearing could not lead to different conclusions than those which the court would reach in written proceedings. The Court of Appeal upheld the applicant ’ s conviction and sentence. It however reduced his overall dama ge liabilities to FIM 2 0,000 (EUR 3,364 ) and ordered him to reimburse K ’ s legal expenses in the District Court jointly and separately with a co-defendant by FIM 25,000 (EUR 4,205). It ordered the parties to bear their own legal expenses in the Court of Appeal.

On 7 February 2001 t he applicant sought leave to appeal and appealed to the Supreme Court ( korkein oikeus , högsta domstolen ) , repeating the complaints that he had made before the Court of Appeal and complaining about the lack of reasoning of the Court of Appeal ’ s judgment .

On 29 January 2002 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

1. The indictment

Chapter 14, section 2 of the Code of Judicial Procedure, as in force at the relevant time, provided that a public prosecutor was to present his/her requests and their grounds at the beginning of the trial. Unless there were pressing reasons, the same applied to the victim.

Chapter 5, section 17 of the Code on Criminal Procedure ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; 689/1997), as subsequently in force, provides that a served indictment may not be changed. A public prosecutor may, however, expand the indictment to include another alleged offence, provided that the court finds it appropriate. Subsection 2 of the section provides that to restrict the charges or to rely on another legal provision or a new fact are not regarded as expanding the charge.

2. Final statement in the pre-trial investigations

Section 42 of the Act on Pre-Trial Investigation provides that the police must give the parties an opportunity to submit their final statements concerning the material gathered in the pre-trial investigations, if such a statement is liable to expedite or facilitate the examination of the case in a court. The final statement must be attached to the minutes of the pre-trial investigations.

3 . Oral hearing in the Court of Appeal

Chapter 26, section 7 of the Code of Judicial Procedure, as in force at the relevant time, provided that a Court of Appeal was to hold an oral hearing when necessary.

According to the terms of the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarante e a right to an oral hearing inso far as Finnish laws at the time of the events at issue did not provide such a right. This applied, inter alia , to proceedings which were held before the Court of Appeal.

COMPLAINTS

The applicant complains under Article 6 of the Convention that :

1. the length of the criminal proceedings against him exceeded a “reasonable time” as the proceedings began in the District Court on 24 April 1996 and ended in the Supreme Court on 29 January 2004, thus lasting five years, nine months and five days;

2. he was convicted of different offences than those with which he was accused contrary to Article 6 § 3 (a) of the Convention;

3. the Court of Appeal did not hold an oral hearing; and

4. he was convicted of libel for pursuing normal and acceptable legal counsel ’ s activities on behalf of his clients, which according to the applicant has a “chilling effect” on the rights of those in need of the services of a legal counsel (Article 6 § 3 (b ) and ( c) of the Convention) .

THE LAW

1. The applicant complains under Article 6 of the Convention about the length of the criminal proceedings. Article 6, insofar as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... ”

The Court considers that it c annot, on the basis of the case- file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains, under Article 6 § 3 (a) of the Convention that he was convicted of different offences than those with which he was charged . The Court has examined his complaints also under Article 6 § 3 (b) of the Convention. Article s 6 § § 3 (a ) and ( b ) read as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; ”

The Court considers that it cannot, on the basis of the case - file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant complains, under Article 6 (see above) of the Convention, that the Court of Appeal did not hold an oral hearing.

The Court notes that by its terms the scope of the Finnish reservation was, at the relevant time, limited to relieving, e.g. , the Court of Appeal from the obligation to hold an oral hearing and consequently finds that the reservation was valid and applicable to the Court of Appeal in the present case (see Helle v. Finland , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 44; Tamminen and Tammelin v. Finland , ( dec .) no. 33003/96, 28 September 1999). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complains that he was convicted of libel for pursuing normal and acceptable legal counsel ’ s activities on behalf of his clients, which has a “chilling effect” on the rights of those in need of the services of a legal counsel. While he has invoked Article 6 § 3 (b) (see above) and Article 6 § 3 (c) of the Convention (right to legal representation) in this regard, the Court considers it appropriate to examine this complaint under Article 10 of the Convention.

Article 10 of the Convention reads, insofar as relevant, 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 considers that it c annot, on the basis of the case- file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the length of the criminal proceedings, the alleged conviction for an offence with which the applicant was not charged and the alleged “chilling effect” of his conviction for acts carried out as legal counsel .

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President