AS TO THE ADMISSIBILITY OF
Application no. 60790/00
by Anja and Anne LÖNNHOLTZ and the estate of Martta LÖNNHOLTZ
The European Court of Human Rights (Fourth Section), sitting on 17 January 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 4 August 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Anja Lönnholtz and Ms Anne Lönnholtz are Finnish nationals, who were born in 1952 and 1955 respectively and live in Iittala. The third applicant is the estate of Mrs Martta Lönnholtz, born in 1920, who died in 1999. They are represented before the Court by Mr Vesa Laukkanen, a lawyer practising in Kokkola. 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.
1. The first set of proceedings
In 1983 Mrs Martta Lönnholtz lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekanslern) on account of an alleged fraud committed by a lawyer conducting the administration of the estate of her late husband. The case was transferred to the Finnish Bar Association’s Disciplinary Board (Suomen asianajajaliiton kurinpitolautakunta, Finlands advokatförbunds disciplinnämnd), which in 1984 found no reason to take measures, as the lawyer concerned had not acted in violation of the lawyers’ code of conduct or otherwise neglected his duties.
Subsequently, the police carried out a pre-trial investigation on Mrs Martta Lönnholtz’s request. On 19 July 1989, the public prosecutor decided not to prosecute as he found no evidence of the alleged fraud.
In September 1989 the applicants instituted criminal proceedings before the District Court (käräjäoikeus, tingsrätten) of Tampere against the above-mentioned lawyer. They also claimed damages and legal costs. The lawyer denied the charges and the other claims. Moreover, he brought a private prosecution against the applicants and charged them with malicious accusation, as they had allegedly knowingly accused him of an offence concerning which the public prosecutor had already decided not to prosecute. He also claimed damages and legal costs. The applicants denied the charges as well as the other claims.
The public prosecutor did not associate himself with either of the private prosecutions.
On 19 December 1990 the District Court decided not to examine the charges against the lawyer, as they had been raised outside the statutory time-limit. However, the District Court convicted the applicants of malicious accusation, sentenced them to a suspended term of four months’ imprisonment and ordered them to pay the lawyer’s legal costs. The District Court rejected his claim for damages as unspecified.
The applicants appealed, requesting that the lawyer be found guilty as charged and that the charges brought against them be rejected.
On 8 February 1993 the Turku Court of Appeal (hovioikeus, hovrätten), finding, inter alia, that the charges against the lawyer had been raised in time, rejected them as there was no evidence that the lawyer was guilty of fraudulent actions. As to the charges of malicious accusation, the Court of Appeal, finding that as from an objective point of view the applicants had reason to bring a private prosecution, rejected the charges against the applicants.
On 4 November 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.
2. The second set of proceedings
The first examination of the case
On 19 January 1994 the applicants brought a private prosecution before the Turku Court of Appeal against the judges, who had convicted them of the afore-mentioned malicious accusation in the District Court. The judges were charged with abuse of office as they had allegedly neglected to examine the case thoroughly, both as to the facts and as to the law. The applicants claimed damages from the State of Finland.
On 4 February, 30 March and 25 May 1994 respectively the court invited the responses of the defendant judges, the Ministry of Justice and the acting public prosecutor, the Chancellor of Justice to the application for a summons. The court received them on 15 March, 19 April and 9 June 1994 respectively. The defendants denied the charges and the State its liability for any damages. In September 1994, the Deputy Chancellor of Justice (apulaisoikeuskansleri, biträdande justitiekanslern) informed the Court of Appeal that he did not associate himself with the private prosecution.
On 1 September 1994 the case was assigned to another judicial secretary of the court. On 15 November 1994 the court invited the applicants’ further comments and they were received on 15 December 1994.
On 10 March 1995 the court held its deliberations, following which the draft judgment was circulated among the Court of Appeal judges for their final consideration. On 13 September 1995 the Court of Appeal, finding that the above-mentioned judges had not overstepped their powers when deciding the case before them, rejected the charges and the other claims.
On 13 November 1995 the applicants appealed to the Supreme Court, requesting an oral hearing. Alternatively, they requested that the case be referred back to the lower court and that it be directed to hold a hearing. On 11 December 1995 the case was assigned to a judicial secretary of the court, who reported on it to the judges on the bench on 27 March 1996. By its decision of 20 June 1996 the Supreme Court referred the case back to the lower court, as it considered that the case should not have been decided without an oral hearing.
The second examination of the case
On 25 June 1996 the case was restored to the Court of Appeal’s case-list. The case was assigned to a section of the court and to a judicial secretary on 23 July and 9 August 1996 respectively. The court held preparatory sessions on 31 January, 6 February, and on 5, 13 and 21 March 1997.
On 20 May 1997 the Court of Appeal held an oral hearing and heard all the parties. The Deputy Chancellor of Justice confirmed that he did not associate himself with the private prosecution.
On 23 November 1998 the Court of Appeal held its final deliberations in the case. On 1 December 1998 it gave judgment, finding that the judges before the District Court should not have convicted the applicants of malicious accusation. The Court of Appeal held that the judges had neglected their duties to examine thoroughly all aspects of the case, but it rejected the charges as it found that the neglect was only minor taken in the context of the proceedings as a whole. However, the Court of Appeal found that the applicants were entitled to compensation due to the afore-mentioned wrongful conviction. The State of Finland was ordered to pay each applicant 30,000 Finnish marks (FIM; about 5,045 euros (EUR)) plus legal costs. All the parties appealed.
On 1 February 1999 the applicants among others lodged their appeals with the Supreme Court. On 20 May 1999 the case was assigned to a judicial secretary of the court. The court held a preparatory meeting on 14 September 1999 following which it invited comments from the Ministry of Justice and the President of the Court of Appeal, which were received on 12 and 18 October 1999 respectively. Following a preparatory meeting on 3 November 1999 the court received the applicants’ comments in reply on 22 November 1999. The court deliberations were held on 1 December 1999. On 8 February 2000 the Supreme Court upheld the Court of Appeal’s judgment insofar as it had rejected the charges. However, the Supreme Court rejected also the claim for damages, as the judges had not acted in a negligent or careless manner. Thus, it found that the applicants were entitled neither to compensation nor to legal costs.
B. Relevant domestic law and practice
Violation of official duties
If a public official when acting in his or her office through carelessness or lack of caution, in another way than by breaching official secrecy, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act when assessed as a whole taking into consideration its detrimental and harmful effect and the other circumstances connected with the act is not petty, he or she shall be sentenced for a negligent violation of official duties to a warning or to a fine (chapter 40, section 11 (792/1989) as in force at the relevant time of the Penal Code (rikoslaki, strafflagen).
A public corporation shall be vicariously liable in damages for injury or damage caused through an error or negligence in the exercise of public authority. The liability arises only if the performance of the activity or the task, in view of its nature and purpose, has not met the reasonable requirements set for it (chapter 3, section 2 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; 412/1974)
According to the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing in so far as Finnish laws at the time of the events at issue did not provide such a right. This applied, inter alia, to the proceedings before the Courts of Appeal in accordance with Chapter 26 section 7 (661/1978) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, 4/1734) and to the proceedings before the Supreme Court in accordance with Chapter 30, section 20 (1904/1979) of the Code of Judicial Procedure.
Proceedings before the Court of Appeal
As a rule, cases are dealt with in the order they arrive to the Court of Appeal (section 14 of the Decree on Courts of Appeal (hovioikeusasetus, hovrättsförordningen; 211/1994).
At the time of the proceedings in the present case there was no provision of law laying down the time-limit for rendering judgment following a hearing. In cases that have become pending before it after 1 May 1998, as a rule, the Court of Appeal is obliged to render judgment within one month from the hearing (chapter 25, section 17 (165/1998) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken).
1. The applicants complained, under Article 6 § 1 of the Convention, that in the first set of proceedings they had been denied a fair trial before the District Court in that they had been convicted of malicious accusation. They also complained, under Article 6 § 2, about a violation of their right to be presumed innocent until proven guilty in the first set of proceedings.
2. The applicants furthermore complained, under Article 6 § 1, about the length of the second set of proceedings.
As regards the first set of proceedings, the applicants complained, under Article 6 § 1 of the Convention, that they had been denied a fair trial before the District Court and, under Article 6 § 2, about a breach of the presumption of innocence. As to the second set of proceedings, they complained, under Article 6 § 1, that they were excessive in length.
Article 6 reads in so far as relevant:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...;
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
1. The Court observes that the third applicant is the estate of Mrs Martta Lönnholz, who died in 1999. This application was lodged on 4 August 2000.
The Court reiterates that a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention ...” Article 34 requires that an individual applicant should claim to have been actually affected by the violation he or she alleges (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, no. 25, §§ 239-240 and Klass and Others v. Germany, judgment of 6 September 1976, Series A, no. 28, § 33); it does not institute for individuals a kind of actio popularis for the interpretation of the Convention or permit individuals to complain of a law simply because they feel that it contravenes the Convention (Norris v. Ireland, judgment of 26 October 1988, Series A, no. 142, § 31; and Sanles Sanles v. Spain (dec.), no. 48335/99, 26 October 2000). The same applies to events or decisions which are alleged to infringe the Convention.
Further, the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Karner v. Austria, 40016/98, § 25, ECHR 2003-IX). Moreover, in the event of the applicant dying subsequent to the introduction of an application the case may be pursued by the next-of-kin. While it is also true that individuals, who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right, this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system.
Accordingly, the Court finds that the estate of Mrs Martta Lönnholz does not have the requisite standing in the present case under Article 34 of the Convention (see, mutatis mutandis, Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-).
It follows that the estate’s complaints are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. In so far as the applicants complained about the first set of proceedings, the Court finds that the final domestic decision within the meaning of Article 35 § 1 of the Convention had been given on 4 November 1993, more than six months before the date on which the application was submitted to the Court. Accordingly the application had been submitted too late.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. Insofar as the applicants complained about the length of the second set of proceedings, the Government contested the applicability of Article 6 under its civil head. If there was no negligence or carelessness on the part of the judges, which was the case in the present case, the applicants were not entitled to any compensation from the State. The Government accordingly considered that the applicants could not claim on arguable grounds to have under domestic law the right to be compensated. Were the Court to take another view, the Government considered that the application was manifestly ill-founded for the following reasons.
The Government took the view that the proceedings had begun on 19 January 1994 and that they ended on 8 February 2000.
The Government considered that the case had been somewhat complex, which was demonstrated by the fact that there had been six preparatory meetings in the Court of Appeal during the second examination of the case. Similarly, the reasoning in its judgment was extensive and the conclusions differed from those reached in the first examination of the case.
The Government submitted that no delays had been attributable to the applicants. However, about four months of the duration could be explained by the time it took for the applicants to lodge their appeals.
The Government considered that the courts had acted with due diligence and that there had been no unjustified periods of inactivity. In the second examination of the case the Court of Appeal had taken ample time to deliberate thoroughly and to prepare an extensive judgment. However, the proceedings had not been particularly lengthy at any given stage.
As to what had been at stake, the Government submitted that the applicants had sought to receive compensation for their mental suffering and the punishment of the defendant judges.
The applicants maintained that Article 6 was applicable as the dispute had concerned a civil right which could be said at least on arguable grounds to be recognised under Finnish law. The proceedings concerned a private prosecution and a civil claim for damages based on the Tort Liability Act. They contested the Government’s allegation that the action was an abuse of proceedings and lacking legal foundation. This was evidenced by the Court of Appeal’s finding in the second examination of the case to the effect that the District Court judges had neglected their duties to examine thoroughly all aspects of the case. The court had held that the applicants were entitled to compensation due to wrongful conviction.
The applicants agreed that the proceedings had begun on 19 January 1994 and that they had ended on 8 February 2000.
The applicants contested the Government’s argument that the case had been complex. The relevant provisions of law had been clear and their interpretation had been unproblematic. As to the allegedly complex facts, the applicants pointed out that in the first written examination of the case the case-file in the Court of Appeal had consisted mainly of the District Court records. In the second examination of the case the defendant judges had been heard in person before the court but there had been no other witnesses.
The applicants argued that they had not contributed to the length of the proceedings. As to the conduct of the courts, they submitted that there had been several unnecessary delays in the Court of Appeal both during the first examination of the case and during the second. The courts should have acted with more diligence than usual having regard to the subject matter, i.e. the functioning of the judiciary. Justice must be seen to be done also in cases concerning the judiciary itself.
As to what had been at stake, the applicants submitted that they had had to live in constant uncertainty for far too long. Their mother, who had been 74 years old when the proceedings had begun, died in 1999 before the final resolution of the case.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, including the applicability of Article 6, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the first and the second applicants’ complaint concerning the length of the second set of proceedings;
Declares inadmissible the remainder of the application.
Michael O’Boyle Nicolas
LÖNNHOLTZ v. FINLAND DECISION
LÖNNHOLTZ v. FINLAND DECISION