FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35083/97
by Elina GOUSSEV and Michael MARENK
against Finland
The European Court of Human Rights (Fourth Section), sitting on 20 May 2003 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
MrsE. Palm,
MrM. Fischbach,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 17 February 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 FACTS
The applicants, Ms Elina Goussev and Mr Michael Marenk, are Finnish nationals, who were born in 1980 and 1972 respectively and live in Helsinki. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. 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, may be summarised as follows.
In November 1995 a group of young people organised a sit-in on the premises of a department store in Helsinki, Oy Stockmann Ab (presently Oyj Stockmann Abp; henceforth “Stockmann”), criticising it for selling fur coats, thereby participating in animal cruelty. Around the same time various pamphlets and posters had appeared in Helsinki, criticising the fur trade in general and Stockmann in particular. The group had to be forcibly removed from the store.
In March 1996 Stockmann requested a pre-trial investigation into “the distribution to the public of printed matters purported to be produced on the company’s behalf but which had not been commissioned by [it]”. Should the police find that a criminal offence had been committed, Stockmann requested that the matter be brought to the attention of the public prosecutor. The request was registered as a matter of suspected public defamation.
On 31 May 1996 the police conducted a search at the home of Ms Goussev and on 23 July 1996 at the home of Mr Marenk. The reason for the searches, according to the minutes, was a demonstration during a session of Parliament on 14 May 1996 and in which the applicants and others had participated. The session had had to be suspended due to the disturbance caused by their demonstration in the galleries. The applicants were suspected of having violated chapter 24, subsection 1, of the Penal Code (rikoslaki, strafflagen) which protects, inter alia, the peace on public premises (julkisen kotirauhan rikkominen, brott mot offentlig frid). That offence carries a punishment of up to one year’s imprisonment, whereas a mere disturbance of such peace (julkisen kotirauhan häiritseminen, störande av offentlig frid) carries the maximum punishment of three months’ imprisonment.
During the searches at the home of Ms Goussev the police seized 52 pamphlets and at the home of Mr Marenk 68 pamphlets. Some other written material was also seized. The pamphlets stated, inter alia:
“Stockmann supports trading in carcasses” (Stocka [Stockmann] tukee raatokauppaa)
“A fur coat is the bloody choice of a selfish human being” (Turkis on itsekkään ihmisen verinen valinta)
“Stockmann is part of the fur industry just as any other trader in fur. The fur industry is a bloody business which maintains thousands of concentration camps for animals. ...” (Stockmann on osa turkisteollisuutta siinä missä mikä tahansa muukin turkiskauppa. Turkisteollisuus on verinen elinkeino, joka ylläpitää tuhansia eläinten keskitysleirejä. ...)
The pamphlets carried the logo and address of the association “Justice for the Animals” (Oikeutta eläimille).
During the pre-trial investigation Ms Goussev confirmed that she had been distributing pamphlets.
Part of the material seized from Ms Goussev’s home was returned to her on 4 July and 10 September 1996, whereas some of the material seized from Mr Marenk was returned to him on 25 and 30 July 1996.
On 17 September 1996, at a hearing before the District Court (käräjäoikeus, tingsrätten) of Helsinki, the head of the pre-trial investigation, officer S., requested an extension of the time-limits for the seizures. Both applicants objected, arguing that the seizures had no legal ground. In addition, the police had had the possibility of copying the pamphlets, rendering an extension of the seizures unnecessary. Officer S. then announced to the court that the reason for the seizures was an investigation into suspected public defamation. The applicants responded that the minutes of the searches were therefore inaccurate. Moreover, a seizure in the course of an investigation into a suspected public defamation required that a request to that end be filed by the allegedly aggrieved party. No such request had been made.
The District Court extended the time-limit until 31 December 1996 concerning the pamphlets seized from Ms Goussev. On 18 November 1996 it made a similar decision concerning the pamphlets seized from Mr Marenk.
The applicants appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki, requesting that the seizures be lifted. On 12 December 1996 the Court of Appeal granted their requests. It noted that the material had been seized in connection with searches conducted in the course of an investigation into an offence other than the suspected public defamation. This called for particular scrutiny in assessing whether the seizures were justified. As they had taken place following a criminal complaint and, inter alia, in order to ensure that the suspected offence could be investigated, they could not be considered unlawful.
Considering the possibility of photocopying the material and other possible measures for ensuring that it could serve as evidence, the Court of Appeal dismissed the argument that the continued seizure of the originals was necessary for that purpose. Even though the potential confiscation of the material spoke in favour of maintaining the seizures, it remained unclear whether or not the pamphlets formed part of already distributed material. In the negative, no prior restriction could be placed on the right to distribute them. In these circumstances, considering that the seizures interfered with the freedom of expression and given the minor interest being served by further maintaining them, it was no longer justified to maintain the seizures. The seized material was to be returned to the applicants once the court’s decision had acquired legal force.
Officer S. then stated his intention to seek leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen).
On 2 January 1997 the District Court extended the time-limits for the seizures until 31 January 1997, given that the Court of Appeal’s decision had not yet acquired legal force.
In his request for leave to appeal dated 22 January 1997 officer S. explained that he sought to have the seizures maintained “in order to prevent continued criminal activity, namely the further distribution of injurious and defamatory material”. He also stated that “by appealing against the seizures ... the suspects ... [were only attempting] to mess up and complicate the pre-trial investigation and the future trial”.
The applicants were indicted for public defamation or, in the alternative, common nuisance. At a hearing before the District Court on 23 January 1997 the public prosecutor nonetheless dropped the charges against Ms Goussev.
At the same hearing the applicants requested the District Court to revoke the seizures. The court declined to examine this request as the Court of Appeal’s decision had not yet acquired legal force.
In March 1997 the public prosecutor again charged Ms Goussev with public defamation or, in the alternative, common nuisance.
On 13 May 1997 the Supreme Court refused police officer S. leave to appeal against the Court of Appeal’s decision of 12 December 1996.
On 15 May 1997 the police returned the seized material to the applicants.
On 18 June 1997 the District Court acquitted both applicants. The public prosecutor appealed but the outcome of the proceedings is not known.
In her decision of 30 March 1998 in response to the applicants’ petition the Deputy Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) opined that the seizure of material related to another offence under investigation than the one in respect of which the search had been ordered was not unlawful. She accepted that the search of Mr Marenk’s home had been covered by the Coercive Measures Act as he had been reasonably suspected of having committed an offence carrying a minimum sentence of six months’ imprisonment. By contrast, she did not find that the conditions for searching Ms Goussev’s home had been met, considering that she could reasonably be suspected only of having committed a lesser offence and as there were no exceptional grounds for proceeding to a search nonetheless.
Turning to the justification of the seizures, the Deputy Ombudsman distinguished between, on the one hand, a seizure of a printed matter which was aimed at securing its use as evidence and, on the other hand, a seizure based on the suspected criminal content of the printed matter. She concluded that a seizure of the latter kind should be governed by the Freedom of the Press Act. As at least part of the material seized from the applicants had to be considered printed matters they should not have been seized without a request to that end having been made by the complainant. In so far as the seizures arguably served the purpose of securing the use of the material as evidence, the Deputy Ombudsman found that it should have been returned to the applicants without delay. Given the limited quantity of documents they could, for example have been photocopied prior to lifting the seizures.
B. Relevant domestic law and practice
Freedom of expression
Article 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as amended by Act no. 969/1995 and in force at the relevant time, provided, in so far as relevant, as follows:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”
The same provision appears in the current Constitution of 2000 (731/1999, section 12).
Defamation
According to chapter 27 of the Penal Code, as in force at the relevant time, a person alleging, either contrary to his or her better knowledge or without better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. If the defamation took place in public or, for example, by means of a printed matter, the sentence could be increased. The injured party was required to report the offence before the public prosecutor may bring charges (sections 1-2 and 8).
The current chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1. Whereas only a natural person may be considered a victim of defamation, legal persons may be afforded indirect protection as in some cases defamation addressed at a legal person may also be considered to concern individuals employed by that legal person (see Government Bill no. 184/1999, p. 34).
The Freedom of the Press Act
The 1919 Act on Freedom of the Press (painovapauslaki, tryckfrihetslagen 1/1919) confirms the right to disseminate printed matters without prior censorship (section 1). A “printed matter” shall mean any writing which has been reproduced with a printing machine or by some other comparable means (section 2).
The Ministry of Justice shall monitor compliance with the Act and may order that charges be brought and that specific printed matters be seized (sections 40-42). In practice the Ministry has been deemed competent to order that charges be brought only if they could be brought by the public prosecutor of his or her own motion, and not when the injured party is required to report the offence for the purpose of having charges brought (Report of the Committee considering new legislation on the freedom of the media, no. 1997:3, p. 136). A public prosecutor or a police commander may, of his or her own motion, order the seizure of a printed matter without a prior order by the Ministry of Justice. The Ministry must be informed of such a seizure within 24 hours.
If charges may not be brought on the prosecutor’s own initiative, the seizure may only be ordered on the request of the allegedly injured party. After charges have been brought the court examining the case has the exclusive competence in respect of seizures (section 42).
The Ministry of Justice shall, within a matter of days, submit any seizure order for review by a court. The court shall either confirm or revoke the order within four days. If that time-limit is not respected the seizure will expire. If charges are not brought within fourteen days from the court’s confirmation of the seizure, the court shall pronounce the expiry of the seizure (sections 44-45).
Guiding principles for the conduct of pre-trial investigations and the use of coercive measures
Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in a criminal investigation no one’s rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily.
Chapter 7, section 1 a, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987) provides that such measures may only be used where they can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation, the degree of interference with the rights of the suspect or other persons subject to the measures as well as in light of any other pertinent circumstances.
Conditions for search and seizure
By chapter 5, section 1 of the Coercive Measures Act, a search of premises may be carried out, if there is reason to suspect that an offence has been committed which carries a maximum punishment of imprisonment exceeding six months.
By Chapter 4, section 1 of the Coercive Measures Act, an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings, has been removed from someone through an offence or is likely to be confiscated by a court order. According to section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants.
COMPLAINTS
1.The applicants complain under Article 6 of the Convention that they did not receive a fair trial since the proceedings concerning the seizures did not comply with the Freedom of the Press Act. It should have been up to the Ministry of Justice to order the seizures on being informed of the suspected offence. Absent such an order, the police should have notified the Ministry of the seizures within a day, following which the Ministry would have had to either lift them or have them reviewed by a court within a matter of days. At any rate, a seizure in the course of an investigation into public defamation required a request by the complainant. None of these requirements were met in the applicants’ case, the police having chosen to apply the Coercive Measures Act.
Moreover, as the seizures were maintained despite the Court of Appeal’s decision to the contrary the applicants were not presumed innocent. The applicants refer to the position of police officer S. – as described in his request for leave to appeal to the Supreme Court – to the effect that the seizures were being maintained in order “to prevent further criminal activity”.
The applicants also complain under Article 14 of the Convention read in conjunction with Article 6 that in the proceedings concerning the seizures they were discriminated against because of their opinions and actions. While the District Court, on 23 January 1997, refrained from examining their request to have the seizures lifted, the same court had already found itself able to extend the time-limit for the seizure when so requested by the police.
2.The applicants also complain under Article 8 that the searches and the seizures were conducted in violation of their right to respect for their private lives, since the complainant had not requested that any material be seized.
3. The applicants further complain under Articles 10, 17 and 18 of the Convention that their freedom of expression was violated. The Freedom of the Press Act was not complied with as the police incorrectly chose to apply the Coercive Measures Act.
At any rate, in seeking leave to appeal to the Supreme Court officer S. revealed that the real aim of the seizures had been to prevent the applicants from spreading the anti-fur pamphlets, that is to say for a purpose other than the one for which even the Act on Coercive Measures was enacted.
The seized material was not returned even after the public prosecutor had dropped the charges against Ms Goussev concerning public defamation and the seizure had expired. It was not necessary to maintain the seizure for several months as the police could have photocopied the material for the purpose of using it as evidence in the court proceedings. Nor did the pamphlets contain anything exceptional, considering the ongoing public discussion about the fur business. The applicants attempted to participate in that debate by disseminating their own value judgments about the unnecessary cruelty to which the farmed fur animals were being subjected and about the moral acceptability of the fur business. While the pamphlets urged the public to boycott Stockmann, they contained no incitement to illegal activity.
4.The applicants finally complain under Article 13 that they were denied an effective remedy against the seizures. Even though they had been lifted by the Court of Appeal and even though the public prosecutor had dropped the charges against Ms Goussev, the District Court refused to decide on the applicants’ requests to have the seizures lifted and the seized material returned.
5.The applicants further complain that the seizures were an unlawful interference with their right to the peaceful enjoyment of their possessions. within the meaning of Article 1 of Protocol 1.
THE LAW
1.The applicants complain under Article 6 of the Convention that they did not receive a fair trial, since the proceedings concerning the seizures did not comply with national law. The applicants complain, moreover, under Article 14 of the Convention read in conjunction with Article 6 that they were discriminated against because of their opinions. While the District Court, on 23 January 1997, refrained from examining their request to have the seizures lifted, the same court had found itself able to extend the time-limit for the seizure when so requested by the police.
The applicants finally complain that since the seizures were maintained by the police despite the Court of Appeal’s decision to the contrary the applicants were not presumed innocent.
Article 6 reads, in so far as relevant, as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ”
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
(i) The Court notes that the proceedings complained of were only related to the seizures and did not amount to a “determination” of a “criminal charge” against the applicants. Article 6 § 1 does not therefore apply.
The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV).
Having found that Article 6 § 1 does not apply to the court proceedings regarding the seizures, the Court considers that the allegation of discrimination does not fall within the ambit of that provision.
It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.
(ii) Turning to the grievance under Article 6 § 2, the Court notes that the applicants were acquitted on 18 June 1997. The Court will assume that Article 6 § 2 comes into play through the request for leave to appeal which police officer S. lodged with the Supreme Court. In this request which preceded the applicants’ acquittal he referred to the applicants’ “criminal activity”. While one passage in his request may have been phrased unfortunately, the Court notes that both in the same sentence and elsewhere in his request S. qualified the applicants as “suspects”. Taking an overall view of the statements by S., the Court therefore finds no indication that the applicants’ right to be presumed innocent was violated.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4.
2.The applicants also complain under Article 8 of the Convention that the searches and the seizures were conducted in violation of their right to respect for their private lives, since the complainant had not requested that any material be seized. Article 8 provides, in so far as relevant, as follows:
“1. Everyone has the right to respect for his private ... life, ...
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.”
To the Court, the searches and seizures no doubt interfered with the applicants’ private lives within the meaning of Article 8 § 1. As regards the alleged unlawfulness of the interference, the Court notes the appellate court’s finding of 12 December 1996 that the mere fact that the material had been seized in connection with searches conducted in the course of an investigation into an offence other than the suspected public defamation did not as such render the seizures unlawful, given that they had taken place following a criminal complaint and, inter alia, in order to ensure that the suspected offence could be investigated. This position was also adopted by the Deputy Ombudsman. In the circumstances of this case the Court does not find this interpretation of domestic law arbitrary.
The Court can further accept that the coercive measures served the legitimate aim of preventing crime (see, for example, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, p. 35, § 36).
As to whether it was “necessary in a democratic society” to conduct the searches and to proceed to seizing various material the Court does not find that the measures were disproportionate to the aforementioned legitimate aim.
In so far as the applicants have complained that the duration of the seizures violated their freedom of expression this grievance falls to be examined under Article 10 (see below).
It follows that the complaint under Article 8 is also manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants further complain under Articles 10, 17 and 18 of the Convention that their freedom of expression was violated. In seeking leave to appeal to the Supreme Court police officer S. revealed that the real aim of the seizures had been to prevent the applicants from spreading the pamphlets. Even though the public prosecutor had dropped the charges against Ms Goussev in January 1997 and the seizure had expired, the material seized from the applicants was not returned until May 1997. It was not necessary to maintain the seizure for several months as the police could have photocopied the material. Nor did the pamphlets contain anything of such nature as to warrant such a long-lasting interference with the applicants’ freedom of expression.
Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 17 reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Article 18 of the Convention reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
The Government consider the complaint manifestly ill-founded. While the searches and seizures did interfere with the exercise of the applicants’ freedom of expression under Article 10 § 1, they were nevertheless justified under Article 10 § 2, being prescribed by law. In its decision of 12 December 1996 the Court of Appeal noted that, although the seizures had been carried out in connection with the investigation of an offence other than the suspected public defamation of Stockmann, the seizures had not been manifestly unlawful as they had also facilitated the resolving of the last-mentioned offence.
The Government submit, moreover, that the interference sought to protect the reputation or rights of Stockmann, that being a legitimate aim for the purposes of Article 10 § 2. Moreover, in Convention terminology measures taken in the course of a pre-trial investigation have been considered to serve the legitimate aim of preventing crime.
As to the question whether the interference was “necessary in a democratic society” in order to protect Stockmann’s reputation and rights, the Government refer to chapter 4, section 1 of the Coercive Measures Act which reflects the principle of proportionality in the use of coercive measures. In its decision of 12 December 1996 the Court of Appeal, in weighing the benefits of the seizures against the applicants’ freedom of expression, considered that maintaining the seizures could be justified by the fact that the seized material might be confiscated. A mere need to use the material as evidence would not have required maintaining the seizures as it would have been possible to copy the material for that purpose. Having nevertheless concluded that maintaining the seizure as a protective measure for possible confiscation purposes was outweighed by the need to protect the applicants’ freedom of expression, the Court of Appeal revoked the seizures. By Chapter 30, sections 22 and 23 of the Code of Judicial Procedure, that decision was immediately enforceable, unless the Supreme Court stayed its enforcement. While it is true that no such order was issued, the seizures were lifted immediately after the Supreme Court had refused the police leave to appeal. Notwithstanding that delay, in the special circumstances the measures taken by the authorities cannot be considered disproportionate to the legitimate aim pursued.
The applicants maintain their complaint, pointing out that theirs was the first case in which printed matters were seized as part of an investigation into the suspected public defamation of a private party. The seizures served the purpose of prior censorship, even though such an interference with the freedom of expression was prohibited by the Constitution and the Freedom of the Press Act. In seeking leave to appeal to the Supreme Court officer S. clearly revealed that he sought to have the seizures maintained “in order to prevent ... the further distribution of the materials offending the injured party”.
The applicants reiterate that in her decision of 30 March 1998 the Deputy Ombudsman distinguished between, on the one hand, a seizure of a printed matter which was aimed at securing its use as evidence and, on the other hand, a seizure based on the suspected criminal content of the printed matter. She concluded that a seizure of the latter kind should be governed by the Freedom of the Press Act.
As for the legitimate aim invoked by the Government, the applicants underline that, as a rule, Finnish law does not protect a legal person’s right to a good reputation. A Supreme Court judgment of 1955 establishing such a right was severely criticised by legal scholars and the position was rejected in later court practice. The amendments to the legislation on defamation which entered into force in 2000 provide that only a physical person can be the object of defamation.
Even assuming that the need to protect Stockmann’s reputation could be considered a legitimate aim, the seizures took place without a request to that end on the part of the complainant as required by section 42, subsection 2 of the Freedom of the Press Act. The Deputy Ombudsman agreed with the applicants that the seizures should not have taken place in the absence of such a request. She also agreed that the seizures should have been lifted earlier as the aim of securing the pamphlets as evidence could have been attained through other measures such as photocopying, thereby interfering less with the applicants’ freedom of expression.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, 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.
4.The applicants further complain under Article 13 of the Convention that they did not have an effective remedy. Although the Court of Appeal had revoked the seizures, and the public prosecutor had dropped the public defamation charges against Ms Goussev, the District Court refused on 23 January 1997 to take a position on the applicants’ requests to have the seizures lifted.
Article 13 reads as follows:
“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 refer to their observations in respect of Article 10, and submit that the complaint under Article 13 should likewise be considered manifestly ill-founded. Were the Court to have another view, the Government point to chapter 4, section 13 of the Coercive Measures Act which enables any interested party to obtain a court review of whether a seizure should be maintained. The applicants used this possibility at the District Court’s hearing on 17 September 1996, where they sought to have the seizures lifted. That remedy certainly fulfilled the requirements of Article 13. The fact that their request was refused has no significance. At any rate, the applicants successfully availed themselves of their right to appeal to a superior court pursuant to chapter 4, section 16 of the Coercive Measures Act. The applicants could also have filed an administrative complaint or a petition with the Ombudsman or the Chancellor of Justice.
The Court considers, in the light of the parties’ submissions, that this complaint also raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is also not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
5.The applicants finally complain that the seizures were an unlawful interference with their right to the peaceful enjoyment of their possessions. They invoke Article 1 of Protocol 1 which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
In finding no appearance of any violation of Article 8 of the Convention the Court has deferred to the Court of Appeal’s interpretation of domestic law. For the same reason, the Court can accept that the interference with the applicants’ property rights was likewise lawful for the purposes of Article 1 of Protocol No. 1. Nor have the applicants challenged the interference on any other ground under this provision. Accordingly, there is no appearance that it has been violated in the present case.
It follows that this complaint is also manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court
Declares unanimously admissible, without prejudging the merits, the applicants’ complaints under Articles 10 and 13 of the Convention concerning the seizures as maintained until 15 May 1997 as well as concerning the alleged absence of an effective remedy in this regard;
Declares by a majority the remainder of the application inadmissible.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy