AS TO THE ADMISSIBILITY OF
Application no. 64436/01
by Jari KAJAS
The European Court of Human Rights (Fourth Section), sitting on 14 September 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström,
Ms L. Mijović,
Mr D. Spielmann, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 21 December 2000,
Having deliberated, decides as follows:
The applicant, Mr Jari Kajas, is a Finnish national, who was born in 1963 and lives in Helsinki. He is represented before the Court by Mr Ari Halonen, 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.
On 16 February 1995 the applicant wrote an article which criticised the business transactions and financial affairs of the Student Association of the University of Helsinki (to be called “HYY” hereinafter). The article was published in a magazine called “Uusi Ylioppilaslehti” which is a publication mainly distributed to the students and Professors of the University of Helsinki and others interested in questions concerning the Student Association and the University. On 7 August 1995 HYY and some others mentioned in the article requested the police to investigate whether the applicant had defamed them. The applicant was interrogated by the police for the first time on 13 September 1995 for approximately one hour.
On 13 February 1996, the police received another request for investigation which was related to alleged defamation in November-December 1995. In the context of this investigation, the applicant was heard on 2 May 1996 and the investigation was completed on the same day.
On 20 June 1996 a local prosecutor decided not to prosecute the applicant for either of the alleged offences. However, as a result of an extraordinary appeal (kantelu, klagan) of 22 July 1996 by the complainants the County Prosecutor of Uusimaa ordered, on 17 January 1997, that the applicant be charged with an offence. On 27 January 1997 another local prosecutor brought defamation charges against the applicant before the District Court (käräjäoikeus, tingsrätt) of Espoo. Charges were brought and a summons was served on the applicant on 31 January 1997.
There were seven hearings before the court on 17 April 1997, 15 and 17 September 1997, 25 November 1997, 3 December 1997, 21 January 1998 and 26 February 1998. Both parties requested an adjournment on four occasions. On 7 April 1998 the District Court found the applicant guilty of defamation. Fines or other penalties were not imposed but the applicant was ordered to pay compensation for some non-pecuniary damage and also for parts of the complainants' legal expenses.
The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) of Helsinki in May 1998. He submitted further observations on 22 December 1998 and 30 March 1999, respectively. On 27 June 2000 the Court of Appeal quashed the District Court's judgment and acquitted the applicant as well as exempting him from the payment of damages and compensation for legal costs. It found that the applicant had been entitled to discuss the financial affairs of HYY publicly and to raise the issue among the students and other interested parties. Having a right to use his freedom of speech in this respect, the applicant had not committed an offence.
B. Relevant domestic law
According to Chapter 16, Section 4, subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time, a District Court was allowed to adjourn a hearing of a criminal case upon request by a party to the proceedings. Any party who considered that the case had unjustifiably been delayed by an adjournment, had the right to lodge a complaint with a Court of Appeal within 30 days from the date of the adjournment. The law was amended as from 1 October 1997, prohibiting adjournment as a general rule.
The applicant complains, under Article 6 § 1 of the Convention, about the length of the criminal proceedings against him.
The applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings exceeded a reasonable time. Article 6 § 1, 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 maintain that the applicant has not exhausted the domestic remedies available to him as he failed to lodge a complaint against unnecessary adjournment pursuant to Chapter 16, section 4, subsection 2 of the Code of Judicial Procedure. Moreover, at no stage of the proceedings, either in the District Court or in the Court of Appeal, did the applicant complain of the length of the proceedings. Nor did he object to any adjournment in the District Court proceedings.
The Government submit that the total length of the proceedings may only be calculated as from the date on which the summons was served upon the applicant, i.e. 31 January 1997. The length of the proceedings before the District Court was thus one year, two months and seven days and the proceedings took place without any particular delay from the court's side. The eight hearings were scheduled at short intervals which nonetheless allowed the parties reasonable time for the preparation of their submissions.
The Government maintain that although the alleged offence was not very severe in nature, the proceedings involved an exceptionally large amount of argumentation and evidence. For example the reasoning in the judgment of the District Court amounted to 60 pages, which indicates that the case was complex and required careful examination. Moreover, the Court of Appeal's judgment, by two votes to one, reached a conclusion different from that of the District Court.
The Government further note that the applicant himself requested adjournment on four occasions during the District Court proceedings. At no point did he request expedited proceedings or object to the requests for adjournment by the other parties. In addition, the applicant provided the Court of Appeal with additional documentation twice after the time for appeal had expired on 8 May 1998 (on 22 December 1998 and on 30 March 1999). The applicant's own conduct therefore affected the length of the proceedings.
The applicant maintains that no domestic remedy existed in relation to the total length of the proceedings as a whole and that the Government have not explained in which way the alleged domestic remedy could have affected the overall length, as Chapter 16, section 4, subsection of the Code of Judicial Procedure applied to District Court proceedings only. Furthermore, the applicant maintains that the said extraordinary appeal was purely a formality without any actual content or meaning in the sense of protection against the length of the proceedings. The Government have not claimed that there would have been any effective remedies available during the period of consideration of charges by the public prosecutor or during the period in which the case was pending before the Court of Appeal or after it had issued its judgment. He notes that the local prosecutor and the county prosecutor issued contradictory decisions concerning the charges. Prosecutors are state authorities and the Government bear responsibility for the acts of its authorities and consequently for the length of the proceeding as a whole.
The applicant submits that as the plaintiff presented new claims and evidence during the District Court proceedings he was forced to request an adjournment, that being his only way of ensuring reasonable time and facilities for the preparation of his defence. He notes that the Government have not claimed that his requests for an adjournment were unjustified and contests the Government's allegation that he himself had contributed to the length of the proceedings. He maintains that the Court of Appeal's inactivity was unjustified.
As regards the Government's contention that he did not at any stage complain of the length of the proceedings or object to the adjournments, the applicant notes that, according to the legislation in force at the relevant time, objections by an accused to adjournments would have been useless. Repetitive adjournments were an established custom and any objection by the accused would have been irrelevant and ineffective.
The applicant finally maintains that the case was not complex in itself. The complexity and the length of the proceedings was a consequence of the fact that domestic legislation allowed the plaintiff to present new claims and evidence even during court hearings. He reiterates his contention that the length of the proceedings exceeded four years and was in breach of the reasonable time requirement of Article 6 § 1 of the Convention.
2. The Court's assessment
As concerns the Government's preliminary objection, the Court recalls that it recently found a violation of Article 13 in a case where the applicant had no effective remedy under Finnish law to enforce his right to a hearing within a reasonable time, rejecting the Government's argument that such an effective remedy would have been provided by the possibility of filing a complaint under Chapter 16, section 4 of the Code of Judicial Procedure (Kangasluoma v. Finland, no. 48339/99, § 49, 20 January 2004). The preliminary objection must therefore be dismissed.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court unanimously
Declares the application admissible, without prejudicing the merits of the case.
Michael O'Boyle Nicolas Bratza
KAJAS v. FINLAND DECISION
KAJAS v. FINLAND DECISION