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URL: http://www.bailii.org/eu/cases/ECHR/2009/1646.html
Cite as: [2009] ECHR 1646

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FOURTH SECTION

DECISION

Application no. 37484/07
by Helena MOLANDER
against Finland

The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 1 August 2007,

Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Helena Molander, is a Finnish national who was born in 1951 and lives in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The circumstances of the case

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

Background

At the material time, the applicant worked as a Child Ombudsman in the Mannerheim League for Child Welfare (Mannerheimin lastensuojeluliitto, Mannerheims barnskyddsförbund), which is a non-governmental organisation.

In 1993, an article about the applicant was published in a magazine called Seura. In November 1996, the applicant brought proceedings against the journalist who had written the article and the magazine’s editor-in-chief, arguing that the article had been of a defamatory nature. Her action was dismissed by the Espoo District Court (käräjäoikeus, tingsrätten) but was upheld on appeal by the Helsinki Appeal Court (hovioikeus, hovrätten), which ordered the journalist and the editor-in-chief to pay damages to the applicant in the amount of 20,000 Finnish marks (FIM), which is equivalent to some 3,360 euros (EUR).

The case now in issue

On 20 December 1996 another article about the applicant written by the same journalist was published in issue no. 51-52/1996 of Seura magazine, stating in the headline that she had been removed from her work as the Child Ombudsman (in Finnish: “Lapsiasiamies hyllylle”) and in the text, inter alia, that she had been transferred to research work and that she would not be replaced as Child Ombudsman (“... Molander siirretään tutkijaksi, eikä hänelle palkata sijaista lapsiasiamieheksi”). According to the applicant, the article was an act of revenge for the fact that she had instituted the above-mentioned proceedings about one month earlier.

On 29 October 1997 the applicant made a police report. The pre-trial investigation was completed on 1 November 1998.

On 3 April 2000 the public prosecutor preferred charges against the journalist and the editor-in-chief. The next day the case became pending before the Espoo District Court.

On 5 May 2000 the District Court invited the parties’ written submissions.

On 26 May 2003 the District Court held a preparatory hearing. A second preliminary hearing was held on 19 September 2003. The District Court heard the case over three days during the period from 1 to 9 December 2003. It heard thirteen witnesses and received a significant amount of documentary evidence.

On 19 January 2004 the District Court gave a judgment, convicting the journalist and the editor-in-chief of defamation, sentencing them to a fine and ordering them, together with Yhtyneet Kuvalehdet Oy, the publishing company, to pay damages to the applicant in the amount of EUR 5,000 and to reimburse two thirds of her costs. The reimbursement of costs was only partial, on the ground that the applicant was considered to have submitted some pieces of evidence which had not been relevant to the case.

On 23 February 2004 the District Court, on the request of the defendants and the applicant, extended the time-limit for appealing against the judgment until 18 March 2004. The time-limit for filing a counter-appeal was fixed at 1 April 2004.

The defendants and the publishing company appealed to the Helsinki Appeal Court. In a counter-appeal dated 1 April 2004 the applicant argued, inter alia, that the appellate court should increase the compensation payable to her.

The case was heard over two days, on 13 and 15 June 2006, in the Appeal Court. On 31 August 2006 the Appeal Court upheld the lower court’s judgment.

On 30 October 2006 the applicant and the defendants applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). Leave was refused on 1 February 2007.

Other events

Meanwhile, on 11 December 2003 the Mannerheim League for Child Welfare decided to wind up the functions of the Child Ombudsman with effect from 1 February 2004. In a final judgment of 27 October 2006 the Helsinki District Court held that the applicant’s duties had been unlawfully terminated.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the criminal proceedings in which she had had standing as a complainant.

She also complained under Article 6 that the proceedings had been unfair for the following reasons. She had been refused the right to submit evidence to show that she was the victim of extensive, intentional and systematic defamation and harassment. At the same time, the court had admitted to the case file, at the request of the defendants, documentary evidence and had heard testimonies which were unrelated to the case. She had not been allowed to reply in writing to a representation submitted to the court by one of the defendants which had included a large number of new insults, with the result that the court had in fact allowed the defamation to persist during the court proceedings. The opportunity afforded to reply orally had not been sufficient, given the nature of the journalist’s written submission to the court. The testimonies of the applicant’s superior and several colleagues had not been properly recorded, with the result that the extent, the systematic nature and entirely unsubstantiated character of the allegations made against her did not clearly transpire from the judgment. The case had not simply concerned defamation but a slander campaign directed at her work and livelihood. The courts had failed to take into account the seriousness of the offence in the assessment of the evidence and in making an award of damages. The judgments described the character of the statements made as mere criticism of the applicant and her work. In addition, only part of her costs had been reimbursed on the ground that she had been considered to have submitted too many pieces of evidence.

In her letter of 14 March 2008 the applicant complained under Article 8 of the Convention that the police and the courts, during the pre-trial investigation and the court proceedings respectively, had allowed the defamation to continue. Also, the fact that she had not been allowed to reply in writing to the written submission(s) of one of the defendants amounted to a breach of Article 8 and of the equality of arms principle on the part of the courts. It had appeared to the applicant that the defendants’ counsel had more or less been in charge of the conduct of the pre-trial investigation and the court proceedings. Furthermore, the fact that the courts had characterised the defamation as criticism, and not as lies, slander and falsifications, amounted to a violation of Article 8. The applicant had been the subject of intentional injury and the perpetrators had, given their lenient sentences and the modest compensation awarded to her, been exonerated by relying on their right to freedom of expression.

THE LAW

A. Length of the proceedings

The applicant complained about the length of the criminal proceedings. She relied on Article 6 § 1 of the Convention which, inter alia, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”

By a letter dated 24 June 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint.

The declaration provided as follows:

“1. Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the criminal proceedings has failed to fulfil the requirement of ”reasonable” referred to in Article 6 § 1 of the Convention.

2. Consequently, the Government are prepared to pay the applicant in compensation for non-pecuniary damage EUR 6,000 (six thousand euros). In the Government’s view, the above amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus an acceptable sum as to quantum in the present case.

3. The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

4. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying the Court to discontinue the examination of this part of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites the Court to strike the application out of its list of cases.”

In a letter of 30 July 2009 the applicant considered that the compensation indicated by the Government in its unilateral declaration was not sufficient. She maintained that the case needed to be decided by the Court as it reflected a wider problem in the judicial system.

The Court notes that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.

Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the following proviso:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX), Kalanyos and Others v. Romania ((no. 57884/00, § 25, 26 April 2007)), and K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007).

The Court observes that the criminal proceedings lasted nine years and three months at three levels of jurisdiction. It notes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 6,000 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded in other similar cases.

The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland, no. 25072/02, §§ 22-27, 31 May 2007; Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007; and Rafael Ahlskog v. Finland, no. 23667/06, §§ 18-24, 13 November 2008).

Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine).

Accordingly, it should be struck out of the list.

B. Remainder of the application

The applicant also complained under Article 6 § 1 of the Convention that the proceedings had been unfair. Moreover, she complained in a letter dated 14 March 2008 that Article 8 of the Convention had also been violated.

As regards the complaints made on 14 March 2008, the Court notes that these complaints were not lodged with the Court within the six months’ time-limit. It follows that these complaints must be rejected as being out of time within the meaning of Article 35 §§ 1 and 4 of the Convention.

As regards the complaints made under Article 6 § 1 of the Convention, the Court finds, having regard to the case file, that the matters complained of do not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza Deputy Registrar President