AS TO THE ADMISSIBILITY OF
Application no. 29172/02
by Pertti Antti Tapio VIROLAINEN
The European Court of Human Rights (Fourth Section), sitting on 7 February 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 22 July 2002,
Having deliberated, decides as follows:
The applicant, Mr Pertti Virolainen, is a Finnish national, who was born in 1939 and lives in Espoo. He is represented before the Court by Mr Jyrki Virolainen, a law professor at the University of Lapland. The respondent Government are represented by their Agent, 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 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 defamation “despite better knowledge” (vastoin parempaa tietoa tehty herjaus, smädelse emot bättre vetande) on several counts, and demanding damages. K. alleged 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. demanded the punishment of the applicant on three counts of alleged false denunciation and three counts of alleged defamation committed “despite better knowledge”. K. alleged that, on 1 June 1995, while representing H. the applicant had reported an offence against K. alleging aggravated fraud, aggravated extortion (kiristys, utpressning), misuse of a position of trust (luottamusaseman väärinkäyttö, missbruk av förtroendeställning) and forgery. According to K., the applicant, in his report of offences, had claimed that K. had overcharged one of his clients, intentionally lost his clients’ cases and caused them damage, and forged the signatures of his clients to several powers of attorney. A public prosecutor had on 26 February 1996 waived charges against K.
In another appended indictment (including charge no. 2.2) K. demanded the punishment of the applicant on five counts of alleged false denunciation and five counts of alleged defamation “despite better knowledge”. K. alleged that, on 14 February 1995, while representing several of his clients the applicant had 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 against K. in the pre-trial investigations following the applicant’s report to the police. A public prosecutor had on 19 February 1996 waived part of the charges against K.. Based on the remaining issues in the reports of offences submitted by the applicant, a public prosecutor had lodged 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 indictments 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 considered. A public prosecutor, present at the hearing, did not support the charges. The applicant was not present due to a holiday trip abroad, of which he had informed the District Court in advance. The case was adjourned at K.’s request. The court imposed a conditional fine on the applicant in order to obtain his attendance. The second hearing took place on 12 September 1996. The case was adjourned as one of the two presiding judges had become disqualified.
On 17 December 1996 the third hearing was held. The applicant contested the charges disputing the alleged facts and requested that these proceedings should follow the pending criminal proceedings against K. concerning the embezzlement and fraud in order for the facts to be better established. 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 probable existence of 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 adjourned at K.’s request.
The fifth hearing was held on 12 February 1997, when the case was adjourned with the agreement of all parties in anticipation of the outcome of the criminal proceedings against K., which were now pending before the same District Court.
On 14 March 1997 the District Court dismissed the charges of alleged embezzlement and fraud against K.. Upon appeal, the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland upheld the judgment on 9 April 1998, and finally, on 19 November 1999, the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
On 20 January 2000 the applicant submitted his observations to the District Court 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.”
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, in which the applicant was not present. 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-defendants against K.. K. repeated his indictment as regards the allegedly unlawful reports of offences submitted by the applicant on 14 February 1995 and 1 June 1995. The applicant’s written observations, contesting these charges (see above), were included in the minutes of the preparatory hearing.
On page 2 of the minutes of the preparatory hearing it was stated:
“K. specified that his indictment was based on those acts that the defendants had committed prior to the public prosecutor’s decision not to lodge charges.”
The District Court’s main hearing 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 main hearing (on pp. 6 and 11), K. presented alternative charges of defamation “without better knowledge” (ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande) i.e. negligent defamation, to be distinguished from defamation “despite better knowledge”, that is to say, intentionally imputing an offence to K. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had).
On page 5 of the minutes of the main hearing the charge 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, despite without better knowledge ... .”
On page 6 of the minutes of the main hearing, it was further noted in connection with charge 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 lodge charges.”
On 25 April 2000 the District Court delivered its judgment. It dismissed all charges concerning false denunciation. According to the District Court, the applicant had not deliberately given false information to the police. It convicted the applicant of defamation committed “without better knowledge”. As to the first set charges (charge 1.2) the court found that the applicant’s allegations presented in his final statement of 11 January 1996 to the police had been harmful to K. and not been proven to be correct. The District Court further ruled that the applicant had in the final statement demanded that K. be charged with those offences reported by his clients, and that at that point he had at his disposal the entire pre-trial investigation report, and could therefore not rely entirely on his clients’ assertions. As regards the second set of charges of defamation (charge no. 2.2) the District Court found, inter alia, that the applicant had submitted to the police final statements of 31 August 1995 and 13 December 1995 in which he had alleged 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. It also took into account a report of an offence drawn up by the applicant on 22 May 1995 on his clients’ behalf. It found 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 defamation “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 of Eastern Finland, complaining under Article 6 § 3 (a) of the Convention that the District Court had convicted him of offences with which he had not been charged and requesting, inter alia, an oral hearing. According to the applicant, K.’s indictment was insufficiently specified and had demanded punishment for defamation “despite better knowledge” whereas the District Court had convicted him of defamation “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 (charge no. 1.2) and on 13 December 1996 (charge no. 2.2) were not mentioned in the indictments and that he had, thus, not been charged with defamation 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.
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 clients’ 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 reports as the District Court had, according to the applicant, wrongly held. He also complained that punishing legal counsel for pursuing their clients’ cases would impede the lawyers’ actions.
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 having held an oral hearing, upheld the District Court’s judgment, accepting its reasons and upholding the applicant’s conviction and sentence. It however reduced his overall damage liabilities to FIM 20,000 (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 18 January 2001 the Finnish Bar Association (Suomen asianajajaliitto, Finlands Advokatförbund) informed the applicant that it had commenced disciplinary proceedings against him.
On 7 February 2001 the applicant sought leave to appeal and appealed to the Supreme Court expressing his dissatisfaction with the outcome and reasoning of the appellate court’s judgment.
On 29 January 2002 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law
1. The Constitution of Finland
Section 12 of the Finnish Constitution (perustuslaki, grundagen; 731/1999) provides that everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act.
2. The indictment
Chapter 14, section 3 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk; 362/1960), 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 is not regarded as expanding the charge.
3. The pre-trial investigations
Section 42 of the Act on Pre-Trial Investigation (esitutkintalaki, förundersökningslagen; 449/1987) 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.
4. The Penal Code
Chapter 27, section 1 of the Penal Code (rikoslaki, strafflagen) as in force at the relevant time, provided that a person alleging, albeit contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.
According to Chapter 27 section 2 of the Penal Code, as in force at the relevant time, a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation.
The applicant complained under Article 6 of the Convention that 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 for five years, nine months and five days.
He further complained that he was convicted of an offence different from that with which he was accused contrary to Article 6 § 3 (a) of the Convention.
Finally he complained that he was convicted of libel for pursuing normal and acceptable legal counsel’s activities on behalf of his clients, which had a “chilling effect” on the rights of those in need of the services of a legal counsel. He invoked Article 6 § 3 (b) and (c) of the Convention.
A. Allegedly excessive length of criminal proceedings
The applicant complains under Article 6 of the Convention about the length of the criminal proceedings. Article 6, insofar as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. The parties’ submissions
The Government submitted that the case was of average complexity. As to the conduct of the applicant, they argued that he was not present at all the hearings, nor did he contest the adjournments. They noted that at the third hearing the applicant expressly requested that the case be adjourned until the criminal case against K. was final. In the fifth hearing the proceedings were adjourned until further notice as the parties agreed on this. As to the conduct of the courts, in the Government’s view all three courts involved in the proceedings acted without undue delay. They submitted that the first two District Court hearings had to be adjourned because the applicant was not present and because the presiding judge had become biased. When the criminal proceedings against K. ended, the District Court resumed proceedings against the applicant and they were finished within two months and nine days. As to the other courts, the Government observed that the length had been completely average.
The applicant submitted that the delay in the proceedings was caused by the fact that his case was adjourned in anticipation of the outcome of the criminal case against K., a fact which was by no means attributable to the applicant. He argued that the criminal case against K. should have been decided more speedily. He further noted that he was absent from the first hearing with the court’s consent and that the case was postponed at K.’s request. Finally he observed that under domestic legislation no effective remedy existed for the enforcement of a right to a hearing within a reasonable time in the context of Article 13.
2. The Court’s assessment
The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, § 35). The Court further reiterates that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see H. v. France, judgment of 24 October 1989, Series A no. 162-A, p. 21-22, § 55).
As to the present case the Court notes that it was not disputed that the proceedings began on 24 April 1996 and ended on 29 January 2002 and thus lasted for five years, nine months and seven days.
The Court considers that the case was not particularly complex.
As to the conduct of the applicant, the Court finds that it was not denied by the applicant that at the third hearing of the District Court, held on 17 December 1996, he had requested that the proceedings should wait until the pending criminal proceedings against K. were final in order to better establish the facts.
As to the conduct of the authorities, the Court takes note of the Government’s argument that all three courts involved in the proceedings acted swiftly and without undue delay. The Court finds that the only delay which contributed significantly to the length was the fact that the proceedings before the District Court were adjourned for three years (from 12 February 1997 until 16 February 2000) in anticipation of the outcome of the related criminal proceedings against K. It was not denied by the applicant that at its fifth hearing, held on 12 February 1997, the parties were unanimous that the case should be adjourned in order to await the outcome of the criminal case against K. Accordingly, as only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement, the Court is of the opinion that in the circumstances of the present case the overall length of over five years and nine months does not disclose an appearance of a violation of Article 6 of the Convention.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 6 § 3 (a) and (b)
The applicant also complained of a violation of Article 6 § 3 (a) of the Convention as he had been convicted of an offence different from the one charged.
Article 6 of the Convention reads, in so far as relevant to the present case, 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;
(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;”
1. The parties’ submissions
The Government submitted that in his original indictment of 4 April 1996 K. gave an account of the course of events and requested punishment of the applicant for false denunciation and defamation despite better knowledge, which had allegedly taken place between 1 June 1995 and 26 February 1996, as specified during the process. They noted that in the preparatory hearing, held on 16 February 2000, K. clarified his original indictment as concerned the time of commission.
The Government submitted that the District Court based its judgment by which it convicted the applicant of defamation without better knowledge on the events in the pre-trial proceedings against K. up to the time when the public prosecutor decided not to lodge charges. Therefore the denunciations made by the applicant against K. and the ensuing pre-trial investigations of the denunciations together with the final statements, up to the time when the public prosecutor decided not to lodge charges, were included in the indictment.
They further submitted that the District Court considered that the description of the action fulfilled the essential elements of defamation, but with regard to intent the court did not share K.’s opinion. They pointed out that the District Court imposed a conviction for an offence which carried a lesser punishment for the applicant. Further, in the Government’s view, the District Court’s conclusion that the applicant had committed public defamation (libel) was within the court’s discretion, as libel is criminalised in the Penal Code in the same section as defamation.
Finally, the Government opined that the applicant, as a lawyer, should have been familiar with the law and the margin of discretion left to the courts. They concluded that the District Court exercised its ordinary legal discretionary powers when it convicted the applicant.
The applicant submitted that the original indictment by K. was vague and did not specify the charges, making no reference to his final statements to the police of 15 December 1995 or 12 January 1996, for which he was finally convicted by the District Court. He further submitted that in the preparatory hearing, held on 25 February 2000, K. had specified the charges as covering “those acts that the [applicant] had committed prior to the public prosecutor’s decision not to lodge charges”. However, in his opinion, these charges were also inadequately specified as they did not contain any date of the commission of the alleged offences.
As to the alternative charges, the applicant argued that, even though K. had added them in the main hearing, he had not specified that they included his final statements given in the pre-trial investigation. Neither were the charges orally specified in the main hearing. At any case, the charges were vague and inadequately particularised, with no mention of any date or any document by which the alleged offences had been committed. The applicant further argued that the District Court failed to request K. to specify his accusations during the proceedings.
It was the applicant’s opinion that he was convicted of an offence different from the one charged, and that he was thereby prevented from preparing his defence.
2. The Court’s assessment
The Court recalls that when determining whether Article 6 of the Convention has been complied with, it must take into account the proceedings as a whole. Furthermore, it recalls that the guarantees in Article 6 § 3 are specific aspects of the right to a fair trial set forth in general in Article 6 § 1 (see, inter alia, Foucher v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, p. 464, § 30). Therefore, the Court finds that the applicant’s complaints should be examined under the two provisions taken together.
The Court observes that the provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on notice of the factual and legal basis of the charges against him (see the Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. The Court considers that in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair. Furthermore, the Court has ruled that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (see the Pélissier and Sassi v. France [GC], no. 25444/94, § 51-52, 54, ECHR 1999-II).
As to the present case, the Court finds that in his original indictment K. requested punishment of the applicant for false denunciation and defamation despite better knowledge, which allegedly took place when the applicant reported an offence against K. and for a second set of charges (charge 2.2) which took place also in the subsequent pre-trial investigation. In the course of the proceedings K. particularised the first set of charges (charge 1.2) as covering also “those acts that the defendants had committed prior to the public prosecutor’s decision not to lodge charges.” Further, although it is clear from the minutes of the main hearing of the District Court that K. had presented alternative charges of defamation committed “without better knowledge”, it remains unclear whether the applicant became aware of these alternative changes as he was not present in all the hearings.
The Court reiterates that, as noted above, the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence. Regarding this question in the present case, the Court finds that the description of the factual situation described in the indictment did not change during the proceedings. Neither was the indictment changed although the timing of the commission of the offences was modified. As to the alternative charges, the Court observes that the applicant might not have been aware that he was charged also with defamation without better knowledge. This could have impaired his chances to defend himself in respect of the charges of which he was eventually convicted. However, the Court reiterates that compliance with Article 6 must be determined in light of the proceedings as a whole, including the appeal procedures. In the case Dallos v. Hungary (no. 29082/95, §§ 47-53, ECHR 2001-II) the Court attributed decisive importance to the subsequent proceedings before the Supreme Court, finding no violation of Article 6 in view of the fact that the Supreme Court had reviewed the case at an oral hearing from the relevant procedural and substantive-law point of view (see Dallos v. Hungary, cited above, § 50). In the present case the applicant appealed to the Court of Appeal, which reviewed the applicant’s case, both from a procedural and a substantive point, upholding the District Court’s judgment. The applicant further sought leave to appeal from the Supreme Court. The Court therefore considers that the applicant had the opportunity to advance before the Court of Appeal his defence in respect of the particularised and alternative charges.
Assessing the fairness of the proceedings as a whole, the Court is therefore not persuaded that the applicant was not sufficiently informed of the nature and cause of the accusation against him for the purposes of Article 6 § 3 (a) of the Convention or that there was a violation of Article 6 § 3 (b) of the Convention or that he was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of Article 10
The applicant complained that as he was convicted of defamation for pursuing his activities as a legal counsel on behalf of his clients, this had a “chilling effect” on the rights of those in need of the services of a legal counsel. He invoked the above-mentioned Article 6 § 3 (b) and (c) of the Convention. The Court finds it more appropriate to examine this part of the application under Article 10 of the Convention, which 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 ... 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.”
1. The Government’s preliminary objection
The Government submitted that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as the applicant had not raised in substance the issue of Article 6 § 3 (b) and (c) or Article 10 before the national courts, nor did he refer to the Convention or to the rights contained in it. In his application of 7 February 2001 for leave to appeal to the Supreme Court, the applicant elaborated on the facts that he was convicted even though his clients were not. There, he referred to literature on advocacy and the obligation to stick to the truth as a lawyer.
The applicant contested the Government’s view on the exhaustion of domestic remedies. He maintained that he had throughout the domestic proceedings raised the issue that if a lawyer could be punished for what he submitted on his clients’ behalf, it would violate the lawyer’s right to represent his clients, which would be an interference with his freedom of expression.
2. The Court’s assessment
The Court recalls at the outset that according to the principles set out in its judgment in the case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions No. 15, 1996-IV, pp. 1210-1222, §§ 65-69) the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Moreover, the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law.
As to the present case, the Court observes that the applicant did raise in his appeal to the Court of Appeal an allegation that a lawyer, when representing his clients, could not be convicted of an act if the charges against his clients were dismissed. He further argued that if it were otherwise no legal representative would attempt to settle disputes between quarrelling clients. However, in his application for leave to appeal to the Supreme Court, the applicant merely expressed his dissatisfaction with the outcome and reasoning of the appellate court’s judgment, opining that he should not have been convicted as the charges against his clients were dismissed. The Court finds therefore that the applicant did not raise in substance before the Supreme Court his complaint as to the alleged violation of his freedom of expression. Consequently, the Court rejects this part of the application for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
VIROLAINEN v. FINLAND DECISION
VIROLAINEN v. FINLAND DECISION