AS TO THE ADMISSIBILITY OF
by Jaana-Mari JANATUINEN
The European Court of Human Rights (Fourth Section), sitting on 20 January 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 3 February 2004,
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 applicant, Ms Jaana-Mari Janatuinen, is a Finnish national who was born in 1980 and lives in Tampere. She was represented before the Court by Mr J. Tuutti, a lawyer practising in Tampere. 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.
The police suspected the applicant’s husband of an aggravated drugs offence. They obtained permission to place his telephone under secret surveillance.
On 30 December 1999 the applicant phoned a third person, K., requesting him to come over and bring along a bag containing items belonging to her husband. The police intercepted this conversation. The facts are not clear on whether the conversation was recorded or not but, at any rate, it was cited in the subsequent criminal complaint and included in the pre-trial investigation material.
By a letter dated 4 January 2001 the applicant’s husband lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) criticising the conduct of the police, in particular their use and handling of the information obtained through the surveillance.
The Deputy Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman, hereinafter “the Ombudsman”) procured statements from the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) and from Chief Inspector A., who had been in charge of the investigation. In his decision of 21 October 2003, the Ombudsman noted, in regard to the above-mentioned conversation between the applicant and K., that permission to intercept a suspect’s telephone conversations did not authorise the police to intercept conversations involving persons other than the suspect. In his view, this kind of conversation could not even be regarded as superfluous information and the interception should have been stopped as soon as it was evident that the conversation did not involve the suspect. He further noted that interception of telecommunications constituted an interference with the essence of the secrecy of communications protected under the Constitution.
The documents submitted to the Ombudsman did not suggest that more than one of the applicant’s conversations with a person other than her husband had been intercepted. According to Chief Inspector A., only one telephone conversation, that of 30 December 1999, was referred to in the pre-trial material and it was not included verbatim. The Ombudsman stated that the police should not have intercepted the conversation between the applicant and K. Although the conversation had apparently not been very long, the interception seemed to have lasted longer than was acceptable, under the circumstances, to identify the persons speaking. Even if the conversation had not been recorded, its contents had been included in the pre-trial material in quite detailed terms either from memory or from notes. The information thus obtained was later used in the questioning of K., who was suspected of a drugs offence. The Ombudsman concluded that the interception of the conversation, having lasted longer than necessary, and the inclusion of its contents in the pre-trial material constituted an unlawful act.
The Ombudsman found, however, that there was no reason to suspect that the act was anything other than a one-off mistake. He also considered its impact quite trivial under the circumstances. However he stressed the importance of the principle at stake. He did not find it necessary to engage in investigating which police officer should be held accountable for the unlawful act. He considered it sufficient to express his opinion on the matter to Chief Inspector A. and to the head of the National Bureau of Investigations. This opinion was also to be forwarded, for future guidance, to the police officers who had been involved in the investigation in question.
The applicant did not resort to any other domestic remedies.
B. Relevant domestic law and practice
Under Chapter 5a, section 2 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987, as amended by Act no. 1026/1995 at the material time) an authority investigating a crime may be granted permission to intercept and record telecommunications sent by the suspect using an extension in his possession or another extension presumably used by him or her, or telecommunications received through such an extension and directed to the suspect, if the information thus obtainable can be assumed to be of very great significance in solving the crime. According to Chapter 5a, sections 5 and 7 of the said Act, the permission is granted by a competent court on the investigating authority’s request for a limited period of time.
The Constitution (Suomen Perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:
Article 10 – The right to privacy:
“Everyone’s private life, honour and the sanctity of the home are guaranteed. ...
The secrecy of correspondence, telephony and other confidential communications is inviolable. Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”
Article 118 – Official accountability:
“A civil servant is responsible for the lawfulness of his or her official actions. ...
Everyone 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 the civil servant or other person in charge of a public task be sentenced to a punishment 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. ...”
Intentional and negligent breach of official duty are punishable acts under Chapter 40 of the Penal Code (rikoslaki, strafflag, Act no. 39/1889 with later amendments). The statute of limitations for these offences is five years. Intentional breach of official duty carries a maximum penalty of one year of imprisonment, whereas negligent breach of official duty may only result in a reprimand or a fine.
According to sections 2, 5, 14 (2) and 43 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987 with later amendments) the investigating authority has to conduct a pre-trial investigation if there are reasons to suspect that a crime has been committed. During the investigation the police will clear up, inter alia, the offence, the circumstances thereof, the parties thereto, and possible damage caused by it. If the suspect is a police officer, the investigation is headed by a public prosecutor. After the investigation is completed the case is submitted to [another] public prosecutor for the consideration of charges.
Section 4a of the said Act (Act no. 692/1997, in force at the material time) provided that, at the proposal of the head of the investigation, the prosecutor could order the pre-trial investigation not to be conducted or that it be interrupted, if he or she were to waive the charges, unless an important public or private interest required otherwise. This provision was replaced by section 4 of the said Act (Act no. 645/2003), which came into force on 1 January 2004 and where the word “interrupted” was substituted by the word “terminated”.
According to Chapter 1, section 7 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål, Act No. 689/1997) the public prosecutor may decide not to prosecute where, inter alia, a penalty more severe than a fine is not anticipated for the offence and the offence is deemed of little significance in view of its detrimental effects and the degree of culpability of the offender manifested.
Prior to January 2004, Chapter 1, section 14 (1) of the Criminal Procedure Act further provided that the injured party could bring a charge for an offence only if the public prosecutor had decided not to prosecute. Article 118 (3) of the Constitution applied to the right of the injured party to bring a charge for an offence in public office (Act no. 1250/1999). Since 1 January 2004 the injured party has had the right to bring such charges also where the investigating authority or the prosecutor has decided not to conduct a pre-trial investigation or that an investigation shall be interrupted or terminated (Act no. 647/2003).
Under Chapter 3, section 1 of the Criminal Procedure Act, a civil claim arising from the offence for which a charge has been brought may be heard in connection with the charge. If such a claim is lodged separately, the provisions on civil procedure apply.
The Tort Liability Act (vahingonkorvauslaki, skadeståndslag, Act no. 412/1974) provides in relevant parts as follows:
Chapter 3, section 2:
“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. ...
However, the liability of the corporation referred to in paragraph (1) arises only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements set for it.”
Chapter 4, section 1:
“An employee shall be liable in damages for injury or damage caused by him/her through an error or omission at work to an amount deemed reasonable in view of the extent of the injury or damage, the nature of the act, the status of the person causing the injury or damage, the needs of the person suffering the same, and other circumstances. If the negligence of the employee has been merely slight, he/she shall not be rendered liable in damages. ...
If the injury or damage has been caused deliberately, full damages shall be awarded unless it is deemed that there are special reasons for reducing the damages. ...”
Chapter 4, section 2 (as amended by Act no. 1423/1991):
“A public official shall be liable for damages for injury or damage caused by him/her through an error or omission at service in accordance with the provisions in section 1 of this chapter.”
Chapter 5, section 6:
“The provisions of this Act on personal injury apply also to damages for the anguish arising from an offence against liberty, honour or the domestic peace or from another comparable offence.”
As to the domestic practice in civil proceedings, reference is made, by way of example, to the following Supreme Court precedents where the State has been found liable in damages for the misconduct of the police or other authorities: KKO:1994:121, KKO:2005:66 and KKO:2008:10.
According to the Parliamentary Ombudsman Act (laki eduskunnan oikeusasiamiehestä, lag om riksdagens justitieombudsman, Act no. 197/2002), which came into force on 1 April 2002, the Ombudsman shall oversee the legality of the actions of authorities. Anyone who thinks that an authority has acted unlawfully or neglected a duty in the performance of their task, may lodge a complaint with the Ombudsman. He or she shall investigate the complaint if there is reason to suspect an unlawful act or negligence in the performance of official duties. The Ombudsman may order that a pre-trial investigation be carried out in order to clarify a matter under his or her investigation. If the Ombudsman concludes that a subject of his or her supervision has acted unlawfully or neglected a duty, he may initiate criminal or disciplinary proceedings or, if such measures are considered unwarranted in a particular case, issue a reprimand to the subject for future guidance. If necessary, the Ombudsman may express to the subject his or her opinion of proper observance of the law, or draw the subject’s attention to the requirements of good administration or to considerations of fundamental and human rights. The Ombudsman may also issue a recommendation to the competent authority that an error be redressed or a shortcoming rectified (sections 1 (1), 2 (1), 3 (1), 10 and 11 (1)). The Act substituted in relevant parts the previous Rules of Procedure of the Parliamentary Ombudsman (eduskunnan oikeusasiamiehen johtosääntö, instruction för riksdagens justititieombudsman, no. 251/2000), which had entered into force on 1 March 2000.
The applicant complained that the interception of her telephone conversations violated her right to respect for her private life and correspondence.
She relied on Article 8 of the Convention which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The submissions of the parties as to the admissibility of the application
The Government argued that the application should be declared inadmissible as the applicant had failed to exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention.
The Government submitted, firstly, that the applicant had not resorted to any other domestic remedies besides lodging a complaint with the Ombudsman which, according to the Court’s case-law, could not be regarded as an effective remedy. As an example, the Government referred to the case of Lehtinen v. Finland (dec.) (no. 39076/97, ECHR 1999 VII). Moreover, the complaint had not been submitted by the applicant herself, but by her husband.
The Government further submitted that the law provided no specific remedy in a case concerning the lawfulness of an interception of an individual call. However, it had been open to the applicant to initiate court proceedings relying on Article 118 of the Constitution, which regulated the criminal and civil liability of civil servants, provided in more detail by law. The provisions of Chapter 40 of the Penal Code applied to the criminal conduct of civil servants. In criminal proceedings a court could also deal with claims for damages based on the alleged offence. Furthermore, it was possible, per se, to bring a separate action for damages against the State and an individual civil servant relying on the relevant provisions of the Tort Liability Act.
The Government pointed out that in the case of Raninen v. Finland (16 December 1997, § 42, Reports of Judgments and Decisions 1997 VIII) the Court had dismissed the Government’s preliminary objection regarding non-exhaustion of domestic remedies, notwithstanding the fact that the applicant had only lodged a complaint with the Ombudsman without resorting to other remedies available. In that case, the Court had found that the Government had not demonstrated that either criminal proceedings or an action for damages would in the particular circumstances of the case have offered reasonable prospects of success.
As to the present case, the Government submitted, in particular, that the applicant could have availed herself of at least criminal proceedings. Although the Ombudsman had not deemed it necessary to investigate which police officer was responsible for the impugned act, he had found the interception and the citation of the contents of the applicant’s telephone call unlawful. Taking into account that the Ombudsman only brought charges in exceptional cases, the applicant should have taken criminal proceedings in order to fulfil the exhaustion requirement. The particular circumstances of the present case did not indicate that this avenue would not have offered any reasonable prospects of success.
Should the Court take a different view of the fulfilment of the exhaustion requirement, the Government submitted that the application was in any event manifestly ill-founded.
The applicant contested the Government’s arguments. She submitted that criminal proceedings could only be brought against an individual civil servant, not against a public organisation or the State. The case at hand was similar to the case of Raninen (cited above), where the Ombudsman had deemed the impugned measure unlawful but had not found any reason to take action against the civil servant in question. The present case was not comparable to the case of Lehtinen (cited above), where the law provided for a specific court remedy. In the applicant’s case, the Ombudsman had stated that there were no grounds for bringing a criminal action. In the light of the Raninen case, it was clear that the applicant would have stood little or no chance of success had she initiated criminal proceedings. The fact that the complaint to the Ombudsman had been submitted by the applicant’s husband was irrelevant. The applicant further contested the Government’s submission of the application being manifestly ill-founded.
In their further observations the Government submitted that, contrary to the applicant’s allegation, the Ombudsman had not stated that there were no grounds for a criminal action. He had merely found it sufficient to notify the relevant parties of his opinion. In the case of Raninen, unlike in the present case, the Ombudsman had explicitly stated that the civil servant in question had acted in good faith and that it had not been appropriate to impose disciplinary sanctions on him or any other official or to press charges. Consequently, the Government had in this case established the existence of an effective remedy.
B. The Court’s assessment
The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 V, with further references).
However, the only remedies which must be tried under Article 35 § 1 of the Convention are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied. In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75, with further references). Nevertheless, if doubts exist as to the effectiveness of a domestic remedy, that remedy must be tried (see, inter alia, Back v. Finland (dec.), no. 23773/94, 9 April 1996, unpublished, and Tamm v. Estonia (dec.), no. 15301/04, 2 September 2008). Where there are several effective remedies available, it is for the applicant to select which remedy to pursue in order to comply with the requirements of Article 35 § 1 of the Convention (see Airey v. Ireland, 9 October 1979, § 23, Series A no. 32) and he or she need not exhaust more than one (see Yağcı and Sargın v. Turkey, 8 June 1995, §§ 42-44, Series A no. 319 A).
According to the Court’s case-law in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, for example, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 IV, and Selmouni, cited above, § 76).
In its case-law, the Court has recognised that Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Selmouni, cited above, § 77, with further references).
Turning to the present case, the Court reiterates that the only remedy the applicant made use of at the domestic level was a complaint lodged with the Ombudsman. The Court does not find it necessary to examine whether the fact that the complaint was submitted by the applicant’s husband alone has any relevance in assessing whether the applicant can be considered to have exhausted domestic remedies, as the application is, in any case, inadmissible for the reasons set out below.
The Court confirms the prominent role played by ombudsmen in the protection of human rights and freedoms, providing, as they do, the individual with swift, free and easily accessible protection against breaches of fundamental rights and ensuring the individual’s fundamental right to good and proper administration of his or her affairs by the authorities at all levels (see, mutatis mutandis, Jasar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 19 January and 11 April 2006).
However, the Court has previously found that, as a general rule, a complaint to an ombudsman cannot be regarded as an effective remedy as required by Article 35 § 1 of the Convention, in particular due to the non-binding nature of his or her decisions (see, mutatis mutandis, Leander v. Sweden, 26 March 1987, § 82, Series A no. 116, Lehtinen v. Finland (dec.), cited above, J.L. v. Finland (dec.), no. 32526/96, 16 November 2000, and Jasar v. the former Yugoslav Republic of Macedonia (dec.), cited above).
In the present case the applicant’s complaint to the Parliamentary Ombudsman did not lead to the full establishment of the facts, let alone to proceedings capable of attributing guilt and awarding monetary redress. Therefore, the Court considers that, in the particular circumstances of the case, recourse to that remedy did not constitute, even in practice, an effective remedy in respect of the applicant’s grievances.
The Government have highlighted, in particular, their opinion that criminal proceedings constituted an effective remedy. The Court observes that as the Ombudsman had not considered it necessary to investigate which individual police officer should be held accountable for the conduct which he had found unlawful per se, the identity of that person was unknown to the applicant. In the Court’s view, this would not, however, have prevented the applicant from filing a criminal complaint with the police. In this respect, regard must be had to the relevant provisions of the Criminal Investigations Act, which oblige the police to clear up alleged offences as well as the circumstances and parties thereto. The integrity and impartiality of the investigation in cases where the suspect is a member of the police force is safeguarded by placing a public prosecutor at the head of the investigation. The subsequent charges are brought by a different prosecutor than the one heading the investigation. Even if no charges are brought by the public prosecutor, the injured party may, relying on Article 118 of the Constitution and Chapter 1, section 14 (1) of the Criminal Procedure Act, pursue the case by way of a private prosecution. As of 1 January 2004 the injured party has the right to initiate a private prosecution also in cases where a pre-trial investigation has not been conducted or has been interrupted or terminated. The Court further notes that the national law enables the injured party to pursue his or her civil claims in connection with criminal charges.
In conclusion, the Court finds that it was open to the applicant to initiate a procedure capable of leading to the identification and prosecution of the person responsible for the contested measure as well as to the award of monetary redress.
As to the other general court remedy provided for in Article 118 of the Constitution, namely a civil action against the State or an individual police officer, the Court finds no reason to suggest that, in the applicant’s case, this remedy would not have proved as available and sufficient as the above-mentioned criminal-law remedy. As stated above, the Ombudsman had acknowledged that a member of the police force had acted unlawfully and in breach of the applicant’s rights. In these circumstances, and even though the identity of the police officer in question was not known, the Court considers that the applicant could have brought a civil action against the State, which was, in accordence with Chapter 3, section 2 of the Tort Liability Act, vicariously liable for damage caused as a result of an error or negligence in the exercise of public authority. The Court recalls in this connection that in the case of J.L. (cited above) the Court accepted the Government’s objection based on non-exhaustion of domestic remedies as the applicant had not availed himself of the general court remedies deriving from Article 118 of the Constitution.
It remains to be examined whether there were specific reasons absolving the applicant from exhausting the general court remedies available to her.
The Court reiterates that in the cases of Lehtinen and J.L. (both cited above), the Court found that the applicants, who had only lodged a complaint with the Ombudsman, had not exhausted domestic remedies within the meaning of Article 35 § 1. In both cases the national law provided for specific court remedies which the applicants had failed to use. In that respect, the present case is different from Lehtinen and J.L.
In the case of Raninen (cited above) the Court found that the Government had not demonstrated that either a criminal prosecution or an action for damages would in the particular circumstances of that case have offered reasonable prospects of success. Nor had any specific court remedy been available to the applicant. The present case is therefore similar to the Raninen case in that the applicant only had at her disposal the general court remedies provided by the Constitution. In both cases the Ombudsman had found the conduct of the authorities unlawful. In the case of Raninen, however, the Ombudsman had found that the civil servant whose conduct had been criticised by the applicant had acted in good faith (see Raninen v. Finland, cited above, § 42).
In the present case the Ombudsman clearly acknowledged that a mistake had been made. Even though the Ombudsman found the impact of the unlawful act to be quite trivial in the circumstances, the Court cannot assume that his statement would have rendered the applicant’s claims futile. Nor can the Court assume that, had the applicant chosen to file a criminal complaint, a pre-trial investigation would have been dispensed with in view of the minor nature of the offence.
The Court finds that the applicant has not put forward any convincing arguments as to the inadequacy or ineffectiveness of the general court remedies in the particular circumstances of the case or pointed to any special circumstances absolving her from the requirement to avail herself of at least one of those remedies. The Court reiterates that in case of doubt, a remedy has to be tried.
Accordingly, the Government’s objection is upheld and the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza