FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32051/96 by Aino JÄÄSKELÄINEN and Others against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 4 May 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, Mr M. Pellonpää, judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 December 1995 and registered on 27 June 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants are Ms Aino Jääskeläinen (“AJ”), Mr Martti Kinnunen (“MK”), Ms Kirsti Kinnunen , Mr Esa Kinnunen and Ms Eija Pietiläinen . The third applicant is the widow of Mr Jaakko Kinnunen (“JK”), who was the first and the second applicant’s brother. The fourth and the fifth applicant are Mr Jaakko Kinnunen’s children. The applicants are all Finnish nationals, born in 1939, 1947, 1945, 1953 and 1964 respectively. They reside in Tampere , Hyrynsalmi , Tampere , Kajaani and Hyvinkää , respectively. The first applicant represents the other applicants before the Court.

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

In proceedings before the Kajaani District Court ( kihlakunnanoikeus , häradsrätten ) in 1986 AJ, JK and MK unsuccessfully contested the validity of a will drawn up by their parents KK and EK and allegedly amended without the plaintiffs’ knowledge. In 1987 the plaintiffs’ appeal was dismissed by the Court of Appeal ( hovioikeus , hovrätten ) of Eastern Finland and in 1988 leave to appeal was refused by the Supreme Court ( korkein oikeus ). A procedural complaint and request for annulment were refused by the Supreme Court in decisions rendered in extraordinary proceedings in 1989 (by justices P, T and others) as well as on 1 June 1990 (by justice T and others).

In proceedings before the Kajaani District Court in 1990 AJ, JK and MK unsuccessfully contested the manner of proving the will. Their appeal was dismissed in 1991, and the Supreme Court refused leave to appeal on 8 May 1992. They continued to petition various other bodies in vain, accusing various judges and officials of offences in office when dealing with the matter: for instance, in an attempt to acquire real property for himself the local chief of police (VJ) had changed the wording of the will before having it registered; when registering the will one judge had unlawfully accepted the amendment to it; when the will had been proven another judge had unlawfully accepted that the chief of police could represent the surviving testator, although the latter had been legally incapacitated and should have been represented by a guardian ad litem ; a third and a fourth judge had unlawfully rejected AJ’s , JK’s and MK’s actions of 1986 and 1990 for contesting the will and the manner in which it had been proven; and a subordinate of the chief of police (EH) eventually appointed guardian ad litem had unlawfully failed to safeguard his ward’s interests.

Three officials lodged a criminal complaint against AJ, JK and MK. The public prosecutor brought charges in June 1991, accusing them of continued public defamation and false denunciation starting in April 1988. The Kajaani City Court ( raastuvanoikeus , rÃ¥dstuvurätten ) held hearings on 3 June, 26 August and 7 and 18 October 1991 in this case and in five other cases, all having been joined. In the second case EJ charged AJ with various counts of defamation; in the third case AJ charged VJ and EH with slander etc.; in the fourth case AJ charged EJ with false denunciation; in the fifth case AJ, JK and MK charged VJ and EH with fraud etc.; and in the sixth case VJ charged AJ, JK and MK with false denunciation. On 31 October 1991 AJ, JK and MK were convicted, sentenced to conditional imprisonment and ordered to pay damages and costs. Their convictions comprised 25, 14 and 14 individualised counts, respectively, whereas their own charges were all rejected. The City Court found, inter alia , that the defendants must have known that the complainants had not committed the crimes imputed to them in a wide public context during a period of several years. The accusations had been particularly insulting towards the end of this period, even though it had been established in a number of decisions that the complainants had not committed unlawful acts or abused their respective positions. The accusations had been capable of subjecting the complainants to contempt or of impeding their careers. The Court of Appeal refused AJ’s , JK’s and MK’s request for a hearing or a remittal of the case. By judgment of 22 December 1992 the Court of Appeal  acquitted them on certain counts but increased their respective sentences to seven months’, two months’ and four months’ conditional imprisonment. They were further ordered to pay an accessory fine in the respective amounts of FIM 11,760, FIM 1,320 and FIM 1,000. In July 1993 JK died. On 30 June 1995 the Supreme Court (justices P, T and others) refused leave to appeal.

In July 1991 the Prosecuting Counsel of the Court of Appeal brought criminal proceedings against AJ, JK and MK for continued false denunciation of a former judge involved in the civil proceedings regarding the will. At an oral hearing on 29 April 1992 before the Court of Appeal as the first instance, the Prosecuting Counsel amended the indictment. The defendants contested the charges and later requested a re-hearing. On 10 November 1992 the Court of Appeal convicted all three defendants of continued public defamation committed in 1988-89 and sentenced them to a fine in the respective amounts of  FIM 4,900, FIM 3,300 and FIM 2,500. They were also ordered to pay compensation for moral damage. The Court of Appeal found that the public accusations against the former judge had been capable of impeding his career as a member of the Bar. On 30 June 1995 the Supreme Court (justices P, T and others) struck out the charges against the deceased JK, quashed AJ’s and MK’s convictions in part and reduced their fines to FIM 2,940 and FIM 1,500.

Meanwhile, in June 1993 AJ, JK and MK had brought a further civil action before the Kajaani District Court, contesting the will and the manner in which it had been registered. This action was also unsuccessful. The appeal of AJ, MK and JK’s successors was dismissed in May 1994. They were refused leave to appeal to the Supreme Court on 30 June 1995.

On 30 June 1995 the Supreme Court also refused AJ’s , JK’s and MK’s further procedural complaint and annulment requests relating to the first set of criminal proceedings and some of the civil proceedings. In his memorandum the référendaire stated that in order to avoid bias the complaint and requests could not be presented to the panel of the Supreme Court which was dealing with the two criminal cases against AJ, JK and MK.

COMPLAINTS

1. The applicants complain that the change of the original will deprived them, or attempted to deprive them, of part of their possessions, in violation of Article 1 of Protocol No. 1.

2. In violation of Article 6 § 1 of the Convention, the courts allegedly took a prejudiced view against AJ, JK (or his successors) and MK in the various proceedings. Supreme Court justices P and T were further biased to participate in the decisions of 30 June 1995 in the respective sets of criminal proceedings against AJ, JK and MK, as they had been considered biased to take part in the extraordinary civil proceedings pending at the same time. The applicants allude to the memorandum of the référendaire of the Supreme Court. The Supreme Court also failed to provide reasons for refusing leave to appeal.

On 18 January 1996 the applicants further complained that AJ’s , JK’s and MK’s defence rights under Article 6 § 3 (a)-(b) had been violated in that EJ’s charges against AJ were never individualised; AJ’s   request to examine prosecution witnesses was refused; and certain written submissions of the defence were not considered by the City Court.

3. AJ’s , JK’s and MK’s criminal convictions were allegedly disproportionate, thereby violating  their freedom of expression under Article 10 of the Convention which entailed their right to criticise the relevant officials in question in a matter of great importance to the applicants.

4. Allegedly in violation of Article 13, the authorities refused to take adequate investigating measures in response to the applicants’ complaints that the officials and judges had committed offences in office.

5. The length of the court proceedings was allegedly unreasonable. In particular, the Supreme Court delayed its examination of the various cases so as to be able to decide all of them simultaneously on 30 June 1995. The delay in the criminal proceedings against AJ, JK and MK had a particularly significant effect on them, considering the legal interest accumulating on the damages they had been ordered to pay.

THE LAW

The Court notes that the third, the fourth and the fifth applicant claim to be the legal successors of JK who, until his death in July 1993, was directly involved in the various proceedings complained of. For the reasons given below, the Court will leave aside the question whether these applicants can claim, in respect of all grievances, the status of “victims” within the meaning of Article 34 of the Convention.

1. The applicants complain that the change of the original will deprived them, or attempted to deprive them, of part of their possessions, in violation of Article 1 of Protocol No. 1 to the Convention which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

( i ) The Court notes that the validity as such of KK’s and EK’s will was decided in ordinary civil proceedings ending in 1988, i.e. prior to 10 May 1990, when Finland ratified the Convention. In addition, one set of extraordinary proceedings ended already in 1989.  It follows that this aspect of the complaint is incompatible ratione temporis with the provisions of the Convention.

(ii) The Court further recalls that under Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The Court notes that the ordinary civil proceedings regarding the manner of proving the will ended in 1992, whereas the application was introduced in 1995. Moreover, one set of extraordinary proceedings ended already in June 1990. It follows that this aspect of the complaint has been raised out of time and is inadmissible under A rticle 35 § 4 of the Convention.

(iii) The Court further finds no indication that the outcome of the ordinary and extraordinary proceedings ending on 30 June 1995 violated the applicants’ property rights within the meaning of Article 1 of Protocol No. 1. This aspect of the complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.             

2. The applicants further complain under Article 6 § 1 of the Convention that the courts took a prejudiced view against AJ, JK (or his successors) and MK in the various proceedings; that justices P and T were biased to participate in the decisions of 30 June 1995 in the criminal proceedings against AJ, JK and MK; and that the Supreme Court failed to provide reasons for refusing leave to appeal. In their submissions of 18 January 1996 the applicants further complained that AJ’s , JK’s and MK’s defence rights under Article 6 § 3 were violated in that EJ’s charges against AJ were never individualised; AJ’s request to examine prosecution witnesses was refused; and certain written submissions of the defence were not considered by the City Court.

( i ) The Court again recalls that under Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final domestic decision was taken. The Court notes that the complaint under Article 6 § 3, i.e. that the rights of the defence were violated in the criminal proceedings ending on 30 June 1995, was lodged only on 18 January 1996, which is more than six months after the final domestic decision. It follows that this aspect of the complaint has been raised out of time and is inadmissible under A rticle 35 § 4 of the Convention.

(ii) Insofar as the applicants’ complaint relates to the absence of reasoning in the Supreme Court's decisions of 30 June 1995 refusing leave to appeal, the Court recalls that an examination under Finnish law as to whether such leave should be granted does not involve a determination of a “civil right” or “obligation”, nor of a “criminal charge” within the meaning of Article 6 § 1 (cf. e.g., no. 19823/92, Dec. 19.2.93, unreported). It follows that this aspect of the complaint must be rejected pursuant to Article 35 § 3 as being incompatible ratione materiae with the provisions of the Convention.

(iii) The Court has examined the remainder of the complaint under Article 6 § 1 of the Convention, in so far as the various proceedings fall within its competence ratione temporis and ratione materiae and after application of the six months’ rule (see 1 above). Article 6 § 1 reads, as far as relevant to this case, as follows:

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

The Court recalls that t he existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in his respect (see, e.g., Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 28).

The Court notes that apart from deciding, on 30 June 1995, on the appeal and the request for leave to appeal in the two sets of criminal proceedings against AJ, JK and MK, the Supreme Court, in extraordinary proceedings, dismissed AJ’s , JK’s and MK’s further complaint and requests relating to the first set of criminal proceedings and some of the civil proceedings. It was in the context of those extraordinary proceedings that the référendaire of the Supreme Court noted the need to avoid bias by not presenting the request and complaints to the panel which was dealing with the two criminal cases. The Court finds, contrary to the applicants’ assertion, that the memorandum of the référendaire did not indicate that justices P and T were biased to sit on the criminal cases against AJ, JK and MK. Nor does the Court find any appearance of objective or subjective partiality on the part of justices P and T due to their participation in decisions refusing AJ’s , JK’s and MK’s requests in the extraordinary proceedings ending in 1989 and 1990.

The Court furthermore finds that the applicants, rather than referring to other procedural aspects of the proceedings, essentially challenge the domestic courts’ appreciation of the evidence and ultimately the material outcome of the various civil and criminal proceedings. The Court recalls, however, that under Article 19 of the Convention its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Court refers, on this point, to the Convention organs’ established case-law (see e.g. no. 25062/94, Dec. 18.10.95, D.R. 83, p. 77). Further, the admissibility of evidence is primarily a matter for regulation by national law. As a rule, it is for the national courts to assess the evidence before them, whereas it is the Court's task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see, e.g., Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, § 26).

In the present case the Court finds no indication that the courts considered the evidence before them in a biased or arbitrary manner violating the requirements of Article 6 § 1 of the Convention. Accordingly, there is no appearance of a violation of this provision with regard to the composition of the Supreme Court and the fairness of the proceedings. I t follows that this aspect of the complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants further complain that AJ’s , JK’s and MK’s criminal convictions were disproportionate, thereby violating their freedom of expression under Article 10 of the Convention which entailed their right to criticise the relevant officials in question in a matter of great importance to the applicants. Article 10 reads, in so far 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 and regardless of frontiers. ...

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 applicants have not alleged that the convictions in question were not grounded on domestic law. The Court is satisfied that the convictions served the legitimate aims of protecting the reputation and rights of the complainants and of maintaining the authority of the judiciary. As for the proportionality test, 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 AJ, JK and MK and the context in which they made them. In determining whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”, 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. It is true that civil servants acting in an official capacity are subject to limits of acceptable criticism which are wider than those applicable to private individuals. Civil servants must nonetheless enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks, and it may therefore prove necessary to protect them from offensive and abusive verbal attacks relating to the performance of their duties (see, e.g., Janowski v. Poland , no. 25716/94, § 33, ECHR 1999-I). The courts and judges in particular must be protected against unfounded attacks (see, e.g. De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233-234, § 37). In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the remarks resulting in the convictions were not uttered in such a context (see, e.g., the aforementioned Janowski judgment, loc.cit . ).

The Court notes that AJ, JK and MK were convicted of repeatedly and publicly imputing offences in office to a judge and several public officials involved in the various civil proceedings regarding the validity and proving of AJ’s , JK’s and MK’s parents’ will. The accusations had been made between 1988 and 1991, when those civil proceedings had been pending and the judgments rendered had dismissed the applicant’s claims. The Court further notes that the criminal convictions were based in part on the public and occasionally very insulting nature of the accusations against the officials and which AJ, JK and MK must have understood to be defamatory. In the Court’s view, the reasons prompting the convictions were relevant and sufficient in terms of the legitimate aims pursued. In the particular circumstances of the case, the resultant interference was therefore proportionate to those aims. In sum, the national authorities did not overstep the margin of appreciation available to them in assessing the necessity of the contested measures.

It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicants further complain that the authorities refused to take adequate investigating measures in response to the applicants’ complaints that the officials and judges had committed offences in office. The applicants invoke Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in this 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 Court recalls that the Convention does not guarantee any right to have pre-trial investigations conducted against a third party. It follows that this complaint is inadmissible under Article 35 § 3 as being incompatible ratione materiae with the provisions of the Convention.

5. The applicants further complain that the length of the various court proceedings was unreasonable. In particular, the Supreme Court delayed its examination of the various cases so as to be able to decide all of them simultaneously on 30 June 1995. The delay in the criminal proceedings against AJ, JK and MK had a particularly significant effect on them, in view of the legal interest accumulating on the damages which they had been ordered to pay.

( i ) In so far as this complaint relates to the length of the extraordinary proceedings ending on 30 June 1995, the Court finds that the consideration of AJ’s , JK’s and MK’s   procedural complaint and annulment requests did not involve a determination of a “civil right” of the applicants within the meaning of Article 6 § 1 (cf., e.g. the aforementioned no. 19823/92). It follows that this aspect of the complaint must be rejected pursuant to Article 35 § 3 as being incompatible ratione materiae with the provisions of the Convention.

(ii) The Court must now assess whether the two sets of criminal proceedings exceeded the reasonable time required by the above-cited Article 6 § 1 of the Convention. To this end, the Court must take into account the particular circumstances of the case while having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicants and of the relevant authorities and the importance of what is at stake for the applicants in the litigation (see, e.g., Duclos v. France judgment of 17 December 1996, Reports 1996-VI, pp. 2180-2081, § 55). A delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (cf., e.g., Pretto and Others v. Italy judgment of  8 December 1983, Series A no. 71, p. 16, § 37).

The Court finds that the first set of criminal proceedings against AJ, JK and MK commenced in June 1991 and ended in June 1995, which amounts to a total length of four years. The Court notes that the charges against AJ, JK and MK were joined with five related cases involving numerous charges and counter charges. The cases were somewhat complex on the facts. As for the applicants’ own conduct, the Court discerns no particular element affecting the length of the proceedings. As for the conduct of the courts, the City Court disposed of the cases in four months and the Court of Appeal dealt with them in about a year without a re-hearing. It is  true that it took the Supreme Court two and a half years to decide on AJ’s , JK’s and MK’s request for leave to appeal. The Court finds, however, given the speedy consideration of the cases at the lower levels, that the overall length of the proceedings is not such as to disclose a violation of Article 6 § 1. It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

(iii) Turning to the second set of cri minal proceedings, the Court notes that these were initiated directly before the Court of Appeal in July 1991 and ended with the Supreme Court’s decision of 30 June 1995. They thus las ted about four years at two court levels only. The Court of Appeal disposed of the case in sixteen months, whereas it took the Supreme Court two years and eight months to decide on the merits without holding a re-hearing. The case was not overly complex on the facts. As for the applicants’ own conduct, the Court discerns no particular element affecting the length of the proceedings. Making an overall assessment, the Court finds nonetheless that these proceedings were not unreasonably lengthy for the purposes of Article 6 § 1. Consequently, this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

(iv) As finally regards the ordinary civil proceedings starting in June 1993 and ending in June 1995, the Court finds that a length of two years for an examination at three court levels is not excessive for the purposes of Article 6 § 1.  This aspect of the complaint must therefore also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress Registrar President