CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 février 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sD083B52B { width:1.2pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 21367/07 by Martti REMES against Finland The European Court of Human Rights (Fourth Section), sitting on 9   February 2010 as a Chamber composed of:   Nicolas Bratza, President,   Giovanni Bonello,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Ledi Bianku,   Nebojša Vučinić, judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 21 May 2007, 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 Martti Remes, is a Finnish national who was born in 1935 and lives in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of 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 1 March 2002 the applicant was questioned by the police on suspicion of having made defamatory remarks about another person in a letter. The pre-trial investigation was closed on 24 April 2002. On 15   October 2002 the public prosecutor filed an application for a summons with the Helsinki District Court ( käräjäoikeus, tingsrätt ). The applicant was summoned to an oral hearing, which was to be held on 27   May 2003. That hearing was, however, cancelled. According to the applicant, the reason for the cancellation was the court's failure to summon his witness. The Government, on the other hand, state that the hearing was cancelled because the presiding judge had fallen ill. By a notice dated 17   November 2003 the applicant was again summoned to the court's oral hearing, the new date being 10 March 2004. At that hearing the prosecutor charged the applicant with defamation. The complainant joined the proceedings and made an accessory claim for damages. In addition to written evidence, the court received testimony from the parties and one witness. The court gave its judgment on the same date. It convicted the applicant as charged and sentenced him to 40 unit fines, amounting to €   960 (euros) in total. It also ordered him to pay damages and costs and expenses to the complainant. On 8 April 2004 the applicant appealed against the judgment to the Helsinki Court of Appeal ( hovioikeus, hovrätten ) maintaining that he was innocent. He also made a claim against the State for costs and expenses claiming that he had travelled in vain to the first hearing, which had been cancelled only one day earlier. The complainant also appealed, requesting that the amount of damages be increased. The complainant initially requested an oral hearing but later withdrew that request. On 5 November 2004 the court asked the parties to submit written replies which were, apparently, received by 3 December 2004. According to the Government, the applicant submitted further comments on 7   February   2005. On 24 May 2006 the Court of Appeal found that the applicant had not acted with intent. It acquitted the applicant of the charge and exempted him from paying damages and costs and expenses to the complainant. The court dismissed his claim against the State without examining its merits, noting that such a claim could not be raised directly before the appellate court. The complainant sought leave to appeal to the Supreme Court ( korkein oikeus, högsta domstolen ), which was refused on 23 April 2007. B.     Relevant domestic law Article 118 of the Constitution ( Suomen Perustuslaki, Finlands grundlag , Act   no.   731/1999) provides that anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task shall have the right to request that charges be brought against that person and that the public organisation, official or other person in charge of a public task be held liable for damages, as provided in more detail by an Act. The Tort Liability Act ( vahingonkorvauslaki, skadeståndslag , Act   no.   412/1974) entitles an individual to institute civil proceedings against the authorities before a district court on the ground that he or she has suffered damage due to the performance of a public function. THE LAW The applicant complained under Article 6 § 1 of the Convention about the length of the above proceedings. He also complained about the non-payment of his costs and expenses incurred due to the District Court's failure to summon the witness and the postponement of the oral hearing. He invoked Article 13 of the Convention in that connection. Article 6 § 1 reads insofar as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 reads: “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.” The Government contested those arguments.   A. Length of the proceedings   1) The parties' submissions   The Government submitted that the proceedings had begun on 1   March   2002 when the applicant had been questioned by the police and ended on 23 April 2007 when the Supreme Court had refused the complainant leave to appeal. The total length of the proceedings was thus five years, one month and 23 days. The Government pointed out that the case had not been considered urgent by the Court of Appeal, which partly contributed to the time taken by that court. The other stages of the proceedings had not been particularly lengthy. The Government concluded that the proceedings had not exceeded a “reasonable time” and the applicant's complaint was thus manifestly ill-founded. The applicant contested the Government's view. The case had not been complex and there was therefore no justification for the total length of the proceedings. Moreover, the proceedings had been delayed due to a procedural mistake made by the first-instance court. The length of the proceedings had caused the applicant considerable distress. He further pointed out that the proceedings had already begun on 22 February 2002, when he had been called to the police station for questioning.   2) The Court's assessment   The Court reiterates that in criminal proceedings the “reasonable time” begins to run with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (see Eckle v. Germany , 15 July 1982, § 73, Series A no. 510). The Court notes that the applicant has not submitted to the Court a copy of the initial summons. In the absence of verification, the Court will proceed on the assumption that the period to be taken into consideration began when the applicant was first questioned by the police, that is, on 1   March 2002. It is undisputed that the proceedings ended on 23 April 2007, when the Supreme Court refused leave to appeal. They thus lasted five years, one month and 23 days for three levels of jurisdiction. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). In this case, the Court finds that the time taken for the pre-trial investigation and the consideration of the charges, some seven and a half months altogether, was not unreasonable. The Court notes that the postponement of the District Court's oral hearing caused a delay in the proceedings, which at that stage had lasted nearly one year and five months. Whether the reason for the cancellation of the first hearing was the judge's illness or the court's failure to summon the witness, or both of those reasons, the delay is nevertheless attributable to the State. As to the time elapsed before the Court of Appeal, some two years and one and a half months, the Court finds it particularly lengthy, having regard to the fact that the case was a simple one and that no oral hearing was held by that court. The Court observes that the leave to appeal proceedings before the Supreme Court took nearly eleven months, which can also be considered lengthy, having regard to the nature of the case. The Court reiterates that it has previously examined comparable cases against Finland. For instance, in Kajas v. Finland (no. 64436/01, 7   March   2006) and Molander v. Finland (no. 10615/03, 7   November 2006), where the proceedings lasted some four years and two months for two levels of jurisdiction and some five years and four months for three levels of jurisdiction respectively, it found a violation of Article   6   §   1 of the Convention in respect of the length of criminal proceedings. As to the impugned criminal proceedings in the case of Virolainen v. Finland (no. 29172/02, 7   February   2006), lasting some five years and nine months for three levels of jurisdiction, the Court found that applicant's length complaint inadmissible. Indeed, as stated above, each case must be assessed in the light of the circumstances of the individual case. As to the present case, the Court points out that the proceedings concerned a simple case of alleged defamation. The Government have not claimed that the applicant's own conduct contributed to the length of the proceedings. On the other hand, the Court notes that in assessing whether the “reasonable time” requirement has been met, weight must also be given to the overall length of the proceedings, which in this case was some five years and two months for three levels of jurisdiction. Even though criminal proceedings will generally be expected to be pursued expeditiously, the case at hand did not involve issues requiring special diligence by the authorities. Having regard to the above, the Court concludes that the proceedings against the applicant, although not as swift as might be expected in a simple criminal case, cannot be regarded as having exceeded a reasonable time. It therefore rejects this complaint under Article 35 §§ 3 and 4 of the Convention as manifestly ill-founded.   B. Other alleged violation   The Court observes that the applicant's second complaint concerns, in essence, access to court in respect of his claim for damages against the State. It therefore falls to be examined under Article 6 § 1 of the Convention rather than Article 13. The Court observes that the Court of Appeal did not examine the applicant's claim, as it had only been raised at the appellate stage. The domestic law provided for the opportunity to bring a claim for damages against the State, provided that such a claim was raised before the District Court as the first instance. Having failed to do so, the applicant cannot be regarded as having exhausted the domestic remedies available to him, and this complaint must be rejected pursuant Article 35 §§ 1 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President