FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49447/99 by Kauko-Aatos LEVÄAHO against Finland

The European Court of Human Rights (Fourth Section), sitting on 15 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 17 June 1999,

Having regard to the partial decision of 21 May 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kauko-Aatos Leväaho, is a Finnish national who was born in 1925 and lives in Helsinki. He is represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, director in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1992, X , a member of the Finnish Bar Association, was appointed administrator and executor of the estate of the applicant’s parents. The estate included three beneficiaries (the applicant and his two brothers).

X was heard as a witness in respect of a claim concerning defamation, brought against the applicant by one of the other beneficiaries. On 8 February 1995, the District Court found the applicant guilty of defamation and calumny on three counts. However, the applicant was not sentenced to any punishment as his offences were regarded as excusable under the relevant provisions of the Penal Code. The Court of Appeal upheld the District Court’s decision on 13 June 1996. The Supreme Court refused the applicant leave to appeal on 23 October 1996.

On 31 August 1995 the applicant requested the police to investigate whether X had given false information while testifying in the above trial. In connection with this pre-trial investigation, X sent a letter to the police dated 24 October 1995 in which he stated that “[the applicant] had been convicted by the Helsinki District Court on 8 February 1995 for offences, of which [a part] concerned defamation committed on 8 November 1993”.

The public prosecutor decided to waive charges on 13 May 1996. On 23 May 1996 the applicant requested the police to investigate whether X had committed libel or slander against him.

On 16 April 1997 the applicant, acting in person, instituted private prosecution against X before the District Court ( käräjäoikeus, tingsrätt ) of Helsinki, accusing him of slander or libel. He considered that the above statement X had given to the police, according to which the applicant had been convicted of an offence, was false and offensive as the applicant had not been sentenced to any punishment even though he had been found guilty.

The public prosecutor decided not to join the trial. Later, on 25 July 1997, he decided not to bring charges against X.

At the District Court hearing, on 7 August 1997, X brought counter-charges against the applicant, accusing him of an intentional false denunciation and, secondarily, of negligent false denunciation. These counter-charges were presented in a letter dated that same day and also orally at the hearing. No summons was served on the applicant in advance.

The public prosecutor supported X’s secondary counter-charge against the applicant and joined the proceedings. The applicant requested that the District Court hearing be adjourned until the end of October as he needed time to prepare his defence.

The District Court refused to grant the requested adjournment. It found it to be justified to proceed without an adjournment even though the applicant as an accused person should normally have had adequate time and facilities for the preparation of his defence. The court noted that the charges brought against the applicant were based on the charges he had brought against X and involved no new information with which the applicant was not familiar and against which he could not have properly defended himself at the time. The finding in respect of the charges brought against the applicant was directly connected with the outcome of the charges brought by himself against X. The applicant had already made numerous submissions to the court in this connection. In the court’s view, the applicant’s request proved that he wanted to continue the proceedings arbitrarily, aiming only to have criminal proceedings pending against X. Therefore, it found that the legal protection of X justified the court’s decision to end the proceedings speedily.

At the conclusion of the hearing, the District Court issued its judgment, dismissing the charges brought by the applicant against X and convicting the applicant of negligent false denunciation. The applicant was sentenced to pay 45 day-fines and was ordered to pay 20,000 Finnish marks (FIM; equivalent to 3,363 euros (EUR)) in compensation for non-pecuniary damage to X’s reputation and FIM 19,500 (equivalent to EUR 3,280) in compensation for X’s legal costs and expenses.

The applicant appealed to the Court of Appeal ( hovioikeus, hovrätt ), requesting an oral hearing or, alternatively, that the case be referred back to the District Court. The applicant’s counsel argued that the applicant should have been afforded more time to defend himself against the charges which he had only learned about during the hearing in which he was convicted. He also should have been afforded, ex officio , an opportunity to consult a lawyer since he, as a layman, could not be expected to defend himself against the charges which had been brought by a professional lawyer. The applicant also requested that the District Court’s decision be quashed and X be convicted as charged. He further maintained, inter alia , that in his letter of 24 October 1995 X did not have any need or acceptable reason to refer to the applicant’s conviction on 8 February 1995 and that in any case X could have used more accurate language.

On 28 May 1998 the Court of Appeal upheld the District Court’s judgment without an oral hearing, finding that a hearing would not have brought any new information to the case.

On 17 December 1998 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law and practice

Chapter 11, section 20 of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ; 1056/1991), as in force at the relevant time, provided that i f a claim was presented against a person on the basis of an offence, he should be summoned to answer. A summons was, however, not necessary when a claim was presented on the basis of an offence alleged against a person personally present in court.

Chapter 16, section 4 (1052/1991) of the Code of Judicial Procedure, as in force at the relevant time, provided that w hen a party requested the suspension of a criminal case in order to present additional evidence or for another reason, the case was to be suspended, if the court deemed there to be a reason for this.

The provisions on criminal procedure were amended with effect as of 1 October 1997. Under the existing provisions, a criminal law case becomes pending upon a written application for a summons submitted by the prosecutor to the district court, or the prosecutor may bring charges by personally summoning the defendant (Chapter 5, section 1, subsection 1 of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål ; 689/1997)). In a case where the charges are brought by the victim himself or herself, a written application for a summons must be submitted to the district court, and the case becomes pending upon receipt of the application. However, in derogation from the main rule, in that situation a defendant may bring charges against the victim for false and unsubstantiated accusation (false denunciation) without an application to that effect (Chapter 7, section 1, subsections 1-3 of the Criminal Procedure Act).

According to explanations given in the Government Bill ( HE 82/1995 ) to amend the provisions on criminal procedure, the purpose of the afore-mentioned provisions of the Criminal Procedure Act is to ensure manageable and expeditious examination of the charges. Charges concerning false and unsubstantiated accusation always have a nexus with the main case and it is therefore appropriate to examine them at the same time. As regards cases where the victim alone brings charges, the provisions further ensure that no unsubstantiated charges are brought.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention:

(a) that the District Court was not an impartial tribunal as it accepted all the charges brought by X, without presuming the applicant innocent. He invokes Article 6 §§ 1 and 2 of the Convention;

(b) that he was not afforded an oral hearing before the Court of Appeal and the Supreme Court. He does not invoke any Convention Articles;

(c) that he was not afforded adequate time and facilities for the preparation of his defence. He invokes Article 6 § 3 (b) of the Convention;

(d) that he was refused a right to defend himself through legal assistance. He invokes Article 6 § 3 (c) of the Convention; and

(e) in his letter of 14 October 2002, that he was not informed promptly of the nature and cause of the accusation against him. He invokes Article 6 § 3 (a) of the Convention.

2. The applicant also complains, under Article 13 of the Convention, about the lack of an effective remedy as the appellate courts did not have an oral hearing or refer the case back to the District Court.

THE LAW

The applicant alleges violations of Article 6 §§ 1, 2 and 3 (a)(b)(c) and Article 13 of the Convention.

A. Article 6 of the Convention

1. The applicant complains under Article 6 of the Convention that the District Court was not an impartial tribunal and that the presumption of innocence was not respected, about the lack of an oral hearing before the Court of Appeal and the Supreme Court, about the lack of time and facilities for the preparation of his defence, that he was refused a right to defend himself through legal assistance and that he was not promptly informed of the nature and cause of the accusation against him.

Article 6 of the Convention, 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...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

(a) The applicant complains about bias and violation of the presumption of innocence under Article 6 §§ 1 and 2 of the Convention (see above). The Court notes that the examination of the case-file does not disclose any appearance of a violation of the provisions of the Convention and therefore decides to reject these complaints as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

(b) The Court has examined the applicant’s complaint about the lack of an oral hearing in the Court of Appeal and the Supreme Court under Article 6 § 1 of the Convention (see above). It notes, having regard to the terms of the reservation, that the scope of the Finnish reservation was, at the relevant time, limited to relieving, for example, the Court of Appeal and the Supreme Court from the obligation to hold an oral hearing and consequently finds that the reservation was valid and applicable to the mentioned courts 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 incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

(c) Insofar as the applicant complains under Article 6 § 3 (b) of the Convention about the lack of time and facilities for the preparation of his defence (see above), the respondent Government maintain that the District Court, in its reasoning of the decision not to adjourn the case, elaborated on the fact that normally such a request would have been accepted, and that normally, an accused should be provided with adequate time to prepare his defence and, that this would support an adjournment of the case. It however refused to adjourn the case for the reasons mentioned in its decision.

The Government emphasise that the applicant was familiar with the case and that there was no new information for him in the counter-charges, as these were a consequence of the charges brought by the applicant against X who denied the charges. It therefore appears that the applicant did not need more time to acquaint himself with the contents of the counter-charges. Furthermore, the case was re-examined by the Court of Appeal, in which proceedings the applicant was represented by a counsel. In those proceedings, the applicant had 30 days’ time to lodge an appeal with the Court of Appeal, which provided the applicant with adequate time to prepare his defence. These proceedings repaired any possible shortcomings in the proceedings before the lower court. The Government note that nothing in the present case indicates that the applicant has suffered from prejudice.

The applicant objects to the Government’s contention that the possibility to appeal to the Court of Appeal remedied any possible shortcomings in the District Court’s proceedings. The proceedings in the Court of Appeal and the Supreme Court were, in his view, a formality and did not afford him his rights under Article 6 of the Convention. The applicant agrees that the domestic legislation enabled a counter-charge to be brought without serving a summons in advance in connection with a charge of denunciation. He however maintains that this fact did not relieve the authorities from their duty to respect the rights guaranteed in Article 6. In the applicant’s opinion he should have been provided with at least one to two weeks for preparation of his defence. The applicant also maintains that the reasons in the District Court’s judgment for dismissing his requests effectively presumed his guilt for defamation. He finally maintains in his letter of 14 October 2002 in reply to the Government’s observations that in addition Article 6 § 3 (a) of the Convention was violated as there was no excuse for failing to provide him in advance with information about the counter-charges brought by X and the public prosecutor.

The Court notes that the legal basis in domestic law for bringing the counter-charges against the applicant without a summons is not in dispute. It observes that in the present case the applicant was not represented by a counsel in the District Court whereas his counterpart was a lawyer by profession. The counter-charges against the applicant were introduced at the beginning of the hearing and the District Court’s minutes indicate that the hearing did not last very long. There is no mention of any interval during the trial or anything to indicate that the applicant had been given information about the counter-charges in advance. In light of these circumstances the applicant’s time and facilities to prepare his defence may be regarded as limited.

The Court has however taken into account the District Court’s reasons for its decision not to adjourn the hearing, namely that the counter-charges against the applicant were based on the charges he himself had brought against X and involved no new information with which the applicant would not have been familiar and against which he could not have properly defended himself. The District Court further found that the applicant’s intention was to continue the proceedings against X arbitrarily and that the legal protection of X justified the decision to give judgment without delay.

The Court agrees that the facts on which the counter-charges were based were familiar to the applicant as the counter-charges resulted from the applicant’s private prosecution and the facts alleged therein. The examination of X’s charges of false denunciation necessarily depended on the well-foundedness of the applicant’s private prosecution and, vice versa , the necessary arguments in support for the applicant’s allegations largely corresponded to the legal elements of the counter-charges. Thus, as the applicant had himself instituted criminal proceedings against X he must have been prepared to present his case, and this in its turn gave some basis for the applicant’s defence against X’s charges. As the legal elements contained in the two competing charges were however not identical the Court nevertheless notes that the applicant may reasonably claim to have been deprived of time and facilities to prepare his response in that respect.

The Court recalls that despite serious shortcomings in the fairness of the proceedings at first instance, in Twalib v. Greece , judgment of 9 June 1998, Reports 1998 ‑ IV, §§ 40-43 it found no violation of Article 6 §§ 1 and 3(b) of the Convention taken together where the applicant had the opportunity to raise the alleged deficiency at an appeal hearing before an appellate Court which had full competence to consider questions of both fact and law and where there was nothing to call the fairness of the appeal proceedings into question.

In the present case, as noted above, the Finnish reservation had the effect that Finland was not under a Convention obligation to ensure that an oral hearing took place before the Court of Appeal or the Supreme Administrative Court (see Helle v. Finland , cited above, § 47). The applicant had however the opportunity to present his arguments in full to the Court of Appeal with the assistance of a legal counsel. The Court notes that the facts of the case as such have not been in dispute at any stage. Also at the Court of Appeal the questions examined seem to have related exclusively to points of interpretation of law. Considering the case as a whole, the Court concludes that the proceedings at the Court of Appeal may be regarded to have remedied the shortcomings in the proceedings at the first court instance. It rejects this complaint as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

(d) As regards the applicant’s complaint under Article 6 § 3 (c) that the District Court should have ex officio appointed a legal counsel for him the Court notes that the applicant did not raise this issue before the District Court. It follows that this complaint must be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

(e) As regards the applicant’s complaint under Article 6 § 3 (a) of the Convention the Court notes that this complaint was first introduced on 14 October 2002. The final domestic decision was issued on 17 December 1998. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Article 13 of the Convention

The applicant complains under Article 13 of the Convention about the lack of an effective remedy. Article 13 reads as follows:

“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.”

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, p. 131, § 52).

The Court has above found that the applicant’s complaints under Article 6 §§ 1, 2 and 3 of the Convention are manifestly ill-founded or incompatible with the provisions of the Convention. It follows that the applicant does not have an “arguable claim” and his complaint does not attract the guarantees of Article 13. This part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President