NIKULA v. FINLAND

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31611/96
by Anne NIKULA
against Finland

The European Court of Human Rights (Fourth Section), sitting on 30 November 2000 as a Chamber composed of

MrG. Ress, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrI. Cabral Barreto,
MrsN. Vajić,
MrM. Pellonpää, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 20 May 1996 and registered on 29 May 1996,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish citizen, born in 1962. She is a lawyer residing in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director-General for Legal Affairs, and Mr Arto Kosonen, Director, both 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.

1.  The criminal proceedings against the applicant's client

In 1992-93 the applicant appeared as defence counsel before the City Court (raastuvanoikeus, rådstuvurätt) of Kokkola in two trials against her client I.S. and others. The applicant acted as counsel under the 1973 Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973) with the City Court’s consent.

In the 1992 trial the public prosecutor T. requested that I.S., his brother S.S. and L.O. temporarily be barred from conducting business (liiketoimintakielto, näringsförbud). The request had been triggered by the winding up of various companies which the defendants had either owned or in which they had held positions of trust. At a hearing on 4 March 1992 T. argued, inter alia, that regardless of whether S.S. had actually participated in the administration of the companies he should be barred from conducting business, given his formal membership of the company boards. The companies’ book-keeper M.H. was heard as one of the witnesses. These proceedings ended with a decision of  9 February 1993 rendered by the Supreme Court (korkein oikeus, högsta domstolen).

Meanwhile, I.S., S.S., L.O. and M.H. had been questioned as suspects in relation to a complaint filed by M.S. (the wife of S.S.) alleging that they had, among other things, misused their positions of trust within one of the companies. On 7 December 1992 T. decided not to bring charges against S.S., having found no evidence that he had participated in any meeting of the company board allocating the funds invested by the complainant for purposes to which she had not agreed, or that S.S. had otherwise consented to such re-allocation.

On 2 February 1993 I.S. was charged with aiding and abetting in fraud and misusing a position of trust. L.O. was accused, inter alia, of aggravated fraud and fraud, whereas M.H. was charged with misusing a position of trust. The public prosecutor T. had summoned S.S. to testify but the applicant and the other defence counsel objected to this on behalf of their clients. Before the City Court the applicant read out and handed in a memorandum titled “Role manipulation and unlawful presentation of evidence” in which she argued, inter alia, as follows:

(translation from Finnish)

“... The indictment seeks to hide the fact that S.S. … has even been chairman of the board of the company in question. …

The blatant abuse in respect of the presentation of evidence must lead the court to reject such evidence. ...

The prosecutor’s arrangement shows that he seeks, by means of procedural tactics, to make a witness out of a co-accused so as to support the indictment. In order to prevent the accused from presenting evidence on those points the prosecutor has, in the same case, brought trumped-up charges against a person who would qualify as witness. … Such deliberate abuse of discretion on the part of a public authority is highly unusual in a State governed by the rule of law.

As regards, in particular, the procedural tactics which the prosecutor has adopted in the present case, namely as many as two instances of role manipulation in one and the same case, I submit that the Norwegian Supreme Court has even condemned a milder form of such manipulation. That precedent disclosed unlawful behaviour similar to that of the prosecutor in the present case …

The prosecutor has, in this case, committed role manipulation, thereby acting contrary to his official duties and jeopardising legal security …”

T. having denied the above allegations and maintained his request, the City Court rejected the objection of the defence and allowed S.S. to testify. On 23 February 1993 the defendants were convicted. I.S. and L.O. were sentenced to conditional imprisonment and fines, and M.H. to fines. All appealed, I.S. and L.O. arguing, inter alia, that S.S. should not have been heard as a witness.

In its judgment of 20 December 1993 the Court of Appeal (hovioikeus, hovrätt) of Vaasa upheld the decision to hear S.S. as witness but acquitted I.S. and M.H. of the charges regarding misuse of a position of trust. They were nonetheless ordered to pay damages to the complainant.

M.H. and T. requested leave to appeal to the Supreme Court. Having been invited to comment on T’.s request, the applicant maintained on behalf of I.S. that S.S. should not have been heard as witness. Leave to appeal was granted to M.H. only. In its decision of 9 March 1995 the Supreme Court, sitting in a chamber of five justices including A.T. and L.L., released M.H. from paying damages.

2.  The defamation proceedings against the applicant

T. reported the applicant’s statements of 2 February 1993 to the Prosecuting Counsel (kanneviskaali, hovrättsfiskalen) of the Court of Appeal for consideration of possible defamation charges. On 27 December 1993 the Acting Prosecuting Counsel considered that the applicant had been guilty of defamation but decided not to indict her, since the offence had been of minor character. The Acting Prosecuting Counsel reasoned, inter alia, as follows:

(translation from Finnish)

“The defamation now in question cannot be expected to result in a more severe punishment than a fine.

[The applicant] made her aforementioned … submission in order to prevent the examination of [S.S.] as witness. By acting in this manner [the applicant] attempted to defend her client’s interests in the trial. … In her submission [she] attempted, perhaps in part due to her inexperience, to place … the case before the City Court in the context of the … Norwegian precedent and its formulations. The submission was thereby worded quite sharply with the effect of offending T. …, although [the applicant] was not able to show the requisite factual grounds for the allegations concerning [T.]

At the same hearing … the City Court found no obstacles to examining [S.S] as witness. In its reasons the City Court noted that no such elements had transpired from the pre-trial record or other material on the basis of which the prosecutor could be seen as having deliberately selected certain persons as the accused in the case. The … Court of Appeal did not reverse [this] decision of the City Court. In these circumstances the [applicant’s offence] has not caused any particularly significant harm to [T.].  …”

Using his independent right of private prosecution, T. nevertheless brought criminal proceedings against the applicant before the Court of Appeal. The court was composed of presiding judge M.K., judges O.V. and J.P. as well as a so-called “referendary” (esittelijä, föredragande) with no right to vote. All except judge O.V. had also taken part in the Court of Appeal’s judgment of 20 December 1993. In addition, according to the applicant, judge M.K. had received T.'s support  for his candidacy for the post of Parliamentary Ombudsman.

On 1 June 1994 the Court of Appeal decided to hold an oral hearing on 16 June 1994. On 8 June 1994 the applicant was summoned to appear in person. She allegedly reached her legal counsel so late that he had only one day to prepare for the hearing.

Before the Court of Appeal the applicant argued that as defence counsel she had to be afforded a far-reaching freedom of expression. Prosecutors and legal counsel were obliged to tolerate criticism to a much wider extent than private individuals. The applicant's statements had been addressed exclusively to the City Court and had been limited to criticising the procedure which T., as prosecutor, had adopted in the applicant’s client’s case. As the City Court had dismissed the applicant’s objection to hearing S.S. as witness, the statements could not qualify as defamatory within the meaning of chapter 27, section 2, of the Penal Code (rikoslaki, strafflag).

T. argued that the applicant's statements to the City Court on 2 February 1993 were capable of subjecting him to contempt as well as of hampering the performance of his professional duties and his career. He referred to his lengthy service as public prosecutor as well as to his municipal position of trust and chairmanship of the local branch of a political party.

On 23 June 1994 the applicant lodged additional written observations with the Court of Appeal which exceptionally took them into account. By judgment of 22 August 1994 it convicted the applicant of public defamation “without better knowledge” (julkinen ei vastoin parempaa tietoa tehty herjaus, offentlig smädelse dock inte emot bättre vetande), i.e. negligent defamation, to be distinguished from public defamation “despite better knowledge”, that is to say intentionally imputing an offence on T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). The applicant was sentenced to a fine in the total of FIM 4,260 (about EUR 700). She was further ordered to pay damages to T. in the amount of FIM 3,000 (about EUR 500) for his suffering, and to compensate his costs in the amount of FIM 8,000 (about EUR 1,350). She was finally ordered to pay FIM 300 (about EUR 50) in costs to the State. The Court of Appeal found, inter alia, as follows:

(translation from Finnish)

“The obligation of an advocate is to safeguard his or her client’s interests within the realms of the law and good advocacy ethics. The requirements relating to an advocate’s activities appear in rather general provisions and rules. According to generally recognised principles, an accused shall be provided with all necessary guarantees for his or her defence. In the same vein an advocate may demand that every aspect of his or her client’s case be correctly and properly dealt with by the court. [Counsel] is under a duty to point out the errors and deficiencies which he or she notices. To this end an advocate is free to criticise anything of relevance to the case. Such criticism must nonetheless be appropriate and based on facts. The grounds for the criticism must be carefully considered. In this function the manner in which an advocate proceeds is also limited, inter alia by the provisions in chapter 27 of the Penal Code.

In the [present] case it has been established that [the applicant] alleged, in her aforementioned written submission, that [T.] had, in assessing who should be charged in the case, deliberately abused his discretion and thereby contravened his official duties.

T. was thus accused of an intentional offence in office within the meaning of chapter 40, section 10, of the Penal Code. [The applicant’s] conduct would … constitute a criminal offence provided her statements were capable of subjecting [T.] to contempt or of hampering the performance of his duties or career. On this point the Court of Appeal notes that the statement was made by a legal practitioner  trained as a judge (varatuomari, vicehäradshövding). The statements were made at a public hearing before the City Court. The statement may thus have spread into the public domain. The statements concerning the … abuse of discretion in violation of official duties may therefore have subjected [T.] to contempt or may have hampered the performance of his duties or career.

[T.] had decided not to bring charges against [S.S.] in the absence of evidence sufficient for an indictment. The Court of Appeal notes that no such elements have transpired which would lead [it] to believe that [T.’s] aforementioned decision was not based on the appropriate reasons spelt out in the decision. In its decision made at the same hearing  … the City Court found no obstacle to examining [S.S.] as witness. In its judgment of 20 December 1993 the … Court of Appeal did not reverse the City Court’s decision.

On the basis of the charges which [T.] brought against [M.H.] the City Court convicted [him] of having misused a position of trust. In its aforementioned judgment the Court of Appeal … acquitted [M.H.] but upheld the City Court’s decision in respect of his obligation to pay damages. The Court of Appeal notes that in this respect no such elements have transpired which would lead [it] to believe that [T.] decided to bring charges against [M.H.] so as to prevent his being examined as a witness.

[The behaviour for which T. has been reproached] has not been proved.

There is no reason to believe that [the applicant] acted with intent…, although she did express her criticism in a manner defaming [T.]. In order to defend her client’s interests [the applicant] attempted to prevent [S.S.] from being heard as a witness and to put forward elements relating to his credibility. [The applicant] was in principle entitled to criticise the public prosecutor and to voice her suspicion that the prosecutor had acted incorrectly. In the assessment of [the applicant’s] guilt no reason has been disclosed for reaching any conclusion other than that she failed to take sufficient care in considering the grounds for her criticism. The Court of Appeal therefore concludes that [the applicant] did not act contrary to her better knowledge. [She] must have realised, however, that her statements were defamatory in nature and were capable of subjecting [T.] to contempt or of hampering the exercise of his official duties or career. …”

Both T. and the applicant appealed to the Supreme Court. When transmitting her observations in reply to T.'s appeal through the Court of Appeal, the applicant requested it to forward to her T.'s observations in reply to her appeal. Following her further request of 7 December 1994 addressed to the Supreme Court the said observations were forwarded to her. She did not submit any additional observations.

On 15 February 1996 the Supreme Court, sitting in a chamber of five justices with A.T.’s sole vote being decisive, upheld the Court of Appeal's reasons but waived the applicant's sentence, considering that her offence had been minor in nature. Accordingly, the fine imposed on her was lifted but her obligation to pay damages and costs was confirmed. Justices E.V. and I.K. voted in favour of upholding the Court of Appeal’s judgment as a whole, whereas justices L.L. and G.P. found that the applicant should be acquitted and relieved of her obligation to pay damages. According to the voting procedure laid down in chapter 23, section 4, of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), the justices in favour of sanctioning the applicant were considered to form a majority, and the most lenient of the two views within that majority prevailed. Justices L.L. and G.P. reasoned as follows:

(translation from Finnish)

“This case concerns, on the one hand, the freedom of speech of the defence lawyer of an accused in criminal proceedings and, on the other hand, the threshold for considering criticism of a public prosecutor’s official actions a criminal offence.

It is in the nature of a fair trial that counsel for the defence shall, if the client’s best interests so require, be free to criticise the public prosecutor’s official actions without therefore being threatened with a punishment. This is considered to be an essential principle of human rights in the Western countries where rule of law prevails. The … principle [becomes devoid of meaning] if defence counsel’s freedom of expression is excessively restricted in such a situation. Legal provisions which restrict this freedom of expression must therefore be interpreted narrowly. Correspondingly, one can expect a public prosecutor to tolerate even sharp criticism of his or her official actions at a public hearing. This is due to the specific nature of the post as public prosecutor.

The act imputed to [the applicant]

On the basis of the Court of Appeal’s reasoning, I consider that [the applicant] did not have any intention to offend [T.] or to act contrary to her better knowledge. The question … is therefore whether [she] is guilty of the defamation imputed to her by the Court of Appeal.

In the trial in question [the applicant] considered the interests of her client to require that the [prosecution witness] be disqualified from witnessing against his brother. To this end [the applicant] stated her suspicion that [T.], in considering whether to press charges, had been guilty of an action called role manipulation. [The applicant] considered it necessary to stress, in particular, that such action was, in her opinion, incompatible with Finnish law and therefore in breach of the … duties of the prosecutor. As her client’s defence counsel, [the applicant] had a right to express such opinions and, as a public prosecutor, [T.] was obliged to tolerate such criticism. As a party to the proceedings, [T.] had an opportunity to respond to [the applicant’s]  statements and dismiss the opposing party’s suspicions if he regarded them groundless.

On the other hand, there was no need for [the applicant], based on her task as defence counsel, to state her opinion as to whether [T.] had possibly committed an offence in office by acting in the alleged manner ... In this respect I consider [the applicant’s] statements inappropriate.

Constitutive elements of defamation

But did [the applicant] commit defamation? Is it enough for the fulfilment of the elements in chapter 27, section 2, of the Penal Code, to purport that someone is ‘guilty of a specific offence’ in the circumstances mentioned in this provision - or is it also required that the alleged offence is capable of subjecting the said person ‘to contempt or harming his professional life or career’? The provision is linguistically open to various interpretations. The Court of Appeal has applied the interpretation which is more favourable to the accused by finding that [her] conduct would constitute a criminal offence [only] if her statements were capable of subjecting [T.] to contempt or of harming his professional life or career. I agree with the Court of Appeal’s interpretation.

Considering the extensive notion of this offence, it is not reasonable to consider that any allegation of an offence would suffice for causing … the injurious consequences mentioned in this provision. In order for the description of defamation to be satisfied evidence is therefore also required in a given case to the effect that … the allegation … of an offence did produce an injurious consequence.

Assessment of the injurious character of the allegation of an offence

It is common knowledge that the role of an accused person’s defence counsel includes criticising the prosecutor’s decision to bring  charges ... This is almost a rule, especially when the charges against counsel’s client are denied.  It is also known that the language used by counsel may be sharp and counsel’s view particularly subjective.  The public present at a trial are therefore usually able to adopt a prudent attitude towards the criticism that the parties subject each other to. Neither is all criticism likely to be taken literally even if those who have presented are legally trained.

As regards [T.’s] alleged role manipulation as such, [the applicant] did not state that [T.] had done something he had not done. Instead she questioned the appropriateness of [his] decisions ... [The applicant] alleged that the actual purposes of [T.’s] actions had not corresponded to the expressed grounds for the actions.  On this basis [the applicant] made known that she considered [T.’s] official actions unlawful and purposely harmful to her client. Despite their unconditional tone and formulation [the applicant’s] statements could be understood more or less as [her] own doubts as to the reasons why [T.] had acted the way he did.

Conclusion

In the light of the above-mentioned, I do not consider [the applicant’s] allegation that [T.] had committed an offence in office was capable of subjecting [him] to contempt or of harming his professional life or career within the meaning of chapter 27, section 2, subsection 1, of the Penal Code. Therefore I consider in not proved that [the applicant] committed defamation … I quash the Court of Appeal’s judgment and dismiss the charges and compensation claims against [the applicant].

Costs

In so far as court costs are concerned, I consider, despite the outcome of the case, that [the applicant], with the inappropriate tone of her remarks, gave cause for [T.] to initiate proceedings against her. Considering the facts, I nonetheless find … that both  parties should bear their own costs.”

B.Relevant domestic law and practice

According to chapter 13, section 1, of the Code of Judicial Procedure and the interpretation thereof, a judge shall be considered biased, inter alia when he or she has served as a judge in another court in respect of the case under consideration or when he or she has previously decided part of the case.

According to chapter 27, section 2, of the Penal Code, a person purporting, albeit not contrary to his or her better knowledge, that someone has committed an offence shall be convicted of defamation, unless he or she can show probable cause in support of the allegation.

In a case where the Supreme Court is acting as the first appellate instance the  adversary of an appellant shall have the right to respond to the appeal within fourteen days from the expiry of the time-limit for appealing. Observations lodged after the expiry of one of these time-limits may be taken into account for a particular reason, unless they seek to introduce arguments or evidence which could have been relied on before the Court of Appeal (chapter 30, sections 14 and 18).

According to chapter 31, section 1, of the Code of Judicial Procedure, a judgment which has acquired legal force may be nullified (poistaa, undanröja) by a court of appeal or the Supreme Court on account of a procedural error, inter alia if the case was examined even though the court lacked quorum or should of its own motion have declined to examine the case for a particular reason (1); or if another procedural error has occurred which is found to have or can be presumed to have essentially influenced the outcome of the case (4). If nullification is sought on these grounds, the application shall be lodged within six months from the date when the judgment sought to be annulled acquired legal force (section 2). In a judgment of 28 March 1997 the Supreme Court nullified a decision of its own for a reason relating to the disqualification of a justice who had participated in that decision.

COMPLAINTS

1.  The applicant complains that her right to express herself freely as defence counsel was violated. She claims that she was found guilty of defamation although what she had submitted to the City Court was true. She invokes Articles 10, 17 and 18 of the Convention.

2.  The applicant also complains that in the defamation case she was denied a fair trial before an independent and impartial tribunal. She refers to the previous participation of judges M.K. and J.P. of the Court of Appeal and its “referendary” in the examination of the charges against her client as well as to T.’s support for M.K.’s candidacy for the post of  Parliamentary Ombudsman. Among those deciding the case against the applicant in the Supreme Court, justices A.T. and L.L. had also sat on the case against the applicant’s client. Moreover, the Court of Appeal was allegedly partial in holding an oral hearing on its own initiative so as to obtain evidence against the applicant. She was also summoned to the Court of Appeal at an excessively short notice. Furthermore, the Court of Appeal failed to take her submissions into consideration, based its judgment on reasons not referred to by the parties and ordered her to pay damages despite the lack of evidence as regards its extent. The Court of Appeal also failed to communicate to her T.'s observations in reply to her appeal. Finally, her right to an effective remedy was violated as the Supreme Court  upheld the Court of Appeal's reasons without examining all the points which she had raised in her appeal. The applicant invokes Article 6 §§ 1, 2 and 3 (b) as well as Article 13 of the Convention.

THE LAW

1.  The applicant complains that her right to express herself freely as defence counsel was violated. She invokes Articles 10, 17 and 18 of the Convention.

Article 10 provides, as far as relevant, 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 …

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.”

The Government agrees that the facts of the case disclose an interference with the applicant’s freedom of expression. This interference was nevertheless justified under Article 10 § 2 of the Convention. The applicant was convicted of defamation on the basis of chapter 27, section 2, of the Penal Code. The interference was thus “prescribed by law”. It furthermore served the legitimate aim of protecting the reputation and rights of T., who had initiated private prosecution proceedings against the applicant. The interference arguably also sought to maintain the authority of the judiciary and the justice system as a whole.

As for the question whether the interference could be deemed “necessary in a democratic society” in order to pursue the above-mentioned aims, the Government recalls that the exercise of the freedom of expression carries with it certain duties and responsibilities. The applicant’s statements were made in her capacity as defence counsel and not with the intention of generally imparting information and ideas. Public prosecutors arguably form part of the judicial machinery in the broad sense and must therefore, like the courts, enjoy public confidence. Having regard to its key role in this field, it is also legitimate to expect the legal profession to contribute to the proper administration of justice, and thus to maintain public confidence therein. Although the limits of acceptable criticism of civil servants are wider than in relation to a private individual, the national courts are better placed to strike the balance between the various interests at stake, including the dignity of the legal profession. The applicant was convicted of having alleged that T. had acted contrary to his official duties as public prosecutor, thereby committing an offence in office. Such an allegation was neither necessary nor even useful from the point of view of the applicant’s client’s defence. The City Court moreover rejected the applicant’s objection and allowed her client’s brother to testify. The interference eventually took the form of a mere conviction without any sentence, albeit with an obligation for the applicant to pay damages and costs. The Government concedes that the threat of an action for defamation, whether in the form of a private prosecution initiated by a civil servant or on behalf of the public, may have an inhibiting effect on the freedom of expression of legal counsel, who may be inclined not to voice even appropriate criticism. In the specific circumstances, however, the interference in question was not disproportionate to the legitimate aim pursued and the domestic courts did not exceed their margin of appreciation.

The Government finally submits that no issue arises under Article 17 or Article 18 of the Convention.

The applicant maintains that the criticism leading to her conviction of defamation was appropriate and based on facts which have not been contested. A defence counsel must be free to express truthful statements which the opposite party does not want to hear.

The Court concludes, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It follows that this part of the application should be declared admissible.

2.  The applicant also complains, on a number of different grounds, that in the defamation case she was denied a fair trial before an independent and impartial tribunal and denied an effective remedy. She invokes Article 6 §§ 1, 2 and 3 (b) as well as Article 13 of the Convention.

Article 6 reads, as far as relevant, as follows:

“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public 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.

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence; ...”

(i)Alleged partiality of the courts

The applicant has complained that both the Court of Appeal and the Supreme Court were partial in the proceedings against her. First, appellate judges M.K. and J.P. had also sat on the case against the applicant’s client, as had the Court of Appeal’s “referendary”. Second, M.K. had received T.’s support for his candidacy for the post of Parliamentary Ombudsman. Third, the Court of Appeal’s partiality was manifested by its decision to hold an oral hearing of its own initiative, allegedly so as to obtain evidence against the applicant. Fourth, Supreme Court justices A.T. and L.L. had also sat on the case against the applicant’s client.

The Government argues that the applicant failed to exhaust domestic remedies. Although legally trained, she did not, in her appeal to the Supreme Court,  raise the alleged partiality of judges M.K. and J.P. due to their participation both in the case against the applicant’s client and the case against herself. The complaint is at any rate manifestly ill-founded. The courts were under a duty to consider ex officio the possible partiality of a judge within the meaning of chapter 13, section 1 of the Code of Judicial Procedure. Although the two sets of proceedings did involve the same persons, the matter under consideration in the case against the applicant had not been considered earlier.

The applicant maintains that she has exhausted all accessible remedies. In particular, it was only when receiving the Supreme Court’s decision that she became aware of the participation of justices A.T. and L.L.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. Normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. The exhaustion rule must be applied with some degree of flexibility and without excessive formalism. It is neither absolute nor capable of being applied automatically, since in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant (see, e.g., the Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210-1211, §§ 65-68).

Turning to the present case, the Court notes that the applicant did not, either before the Court of Appeal itself or in her appeal to the Supreme Court, challenge judges M.K. and J.P. or the Court of Appeal’s “referendary” on grounds of bias. Neither does the Court find any reason why at least one of these remedies should not have been attempted. The applicant has therefore failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention in so far as regards the alleged partiality of the Court of Appeal.

In so far as the applicant has alleged partiality on the part of two Supreme Court justices, the Court can accept that she became aware of the composition of the relevant chamber only when receiving the Supreme Court’s decision. Under domestic law, however, the applicant could have requested the Supreme Court to nullify its own judgment with reference to the alleged partiality. Although Article 35 § 1 of the Convention does not normally require resort to extraordinary remedies, the Court notes that in the Supreme Court’s practice partiality of a judge has been regarded as a ground for nullification of a judgment which has acquired legal force. In the circumstances of this case the applicant may therefore have been obliged to exhaust this extraordinary remedy, absent special circumstances absolving her from this obligation (see application no. 26323/95, 1.6.1999, to be published in Reports 1999-V) .

As the Government have not pleaded non-exhaustion with reference to the extraordinary remedy at the applicant’s disposal, the Court will nevertheless examine whether the accusation against her was examined by independent and impartial tribunals within the meaning of Article 6 § 1 of the Convention. It notes that the case raises questions of impartiality rather than independence proper. The existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is to say whether the judge held any personal prejudice or bias in a given case, and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, the Fey v. Austria judgment of 24 February 1993, Series A no. 255, p. 12, §§ 28 et seq.).

As to the subjective test, the personal impartiality of a judge must be presumed until there is a proof to the contrary. Under the objective test, when determining whether there were ascertainable facts capable of raising doubts as to the impartiality of a judge, even appearances may be of a certain importance. The fact that a judge has participated in previous proceedings concerning the same party does not in itself justify doubts as to his or her impartiality (see, e.g., no. 11879/85, 6.12.1989, D. R. 65, p. 232, and no. 17722/91, 8.4.1991, D. R. 69, p. 345). The objective impartiality may be jeopardised if a judge takes part in several consecutive stages of the same set of proceedings (see, e.g., the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).

In the present case it is true that justices L.L. and A.T. took part in the respective decisions terminating the proceedings against the applicant’s client I.S. and those later initiated against herself. The Court notes, however, that the justices’ participation in the first-mentioned proceedings was limited to examining the appeal of co-accused M.H. and concluding that he should be relieved of his obligation to pay damages and costs. The legal questions before the justices in the two proceedings were thus distinctly different.

Against this background the Court does not find it established that either of the two justices was subjectively or objectively partial in deciding the case against the applicant. Accordingly, there is no appearance of a violation of Article 6 in this respect.

The Court concludes that this aspect of the complaint is inadmissible in part for non-exhaustion of domestic remedies pursuant to Article 35 § 3 of the Convention and in part as being manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.

(ii)Allegedly inadequate time for preparing the defence

The applicant has further complained that the Court of Appeal, of its own motion and after consulting only T., decided to hold an oral hearing at very short notice.

The Government concedes that the applicant was summoned to the Court of Appeal‘s hearing at quite short notice. She failed, however, to exhaust domestic remedies as she did not request an adjournment of the hearing by arguing that she did not have adequate time to prepare her defence. This complaint is at any rate manifestly ill-founded. In view of her argument that no hearing was necessary, it is understandable that she was not provided with more time for her preparations. At the relevant time the proceedings before courts of appeal were principally in writing and oral hearings were mainly intended for taking further evidence. As the parties’ oral arguments did not differ from those they had submitted in writing and the main evidence had been presented at the written stage preceding the hearing, the applicant was able to prepare her defence properly.

The applicant argues that requesting an adjournment of the hearing would only have resulted in further costs for the defence. In addition, the minutes of the hearing in no way reproduced the statements of the defence or those of T., which hampered the preparation of the applicant’s further appeal to the Supreme Court. Eventually the applicant did, however, receive an audio tape of the hearing.

In so far as the applicant has complained that the summary minutes of the hearing hampered the preparation of her appeal, the Court notes that this grievance was lodged with the Court for the first time in the applicant’s observations of 4 September 1998. Under Article 35 § 1 of the Convention the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. As the final decision in the present case dates back to 1996 this grievance is belated.

In so far as the applicant has complained that the hearing before the Court of Appeal was fixed at unreasonably short notice, the Court notes that she did not request a postponement or adjournment of the oral proceedings. As she did raise this point in her appeal to the Supreme Court, the Court cannot find that she failed to exhaust domestic remedies on this point. The Court notes, however, that at the hearing the applicant, a legal practitioner herself, was also assisted by counsel. Moreover, the Court of Appeal exceptionally took her post-hearing brief into account. Having assessed the oral pleadings of the defence and taking into account that the defence did not consider it necessary to request a postponement of the hearing, the Court finds no appearance of a violation of Article 6 in this respect either.

It follows that this part of the application must be rejected in part as being out of time, pursuant to Article 35 § 3 of the Convention, and in part as being manifestly ill-founded, pursuant to 35 § 4.

(iii)Alleged failure to communicate observations

The applicant has also complained that the Court of Appeal failed to forward to her  the observations which T. had submitted in reply to her appeal to the Supreme Court.

The Government submit that this complaint is manifestly ill-founded. The applicant was not prevented from informing the Supreme Court of her intention to submit additional observations. Even if she may not have received immediately a copy of T.’s observations in response to her appeal, such a mistake was nearly insignificant, since it would not have affected the outcome of the case. At that stage of the proceedings the applicant would have had no right to have her possible further observations taken into account, unless she could convince the Supreme Court of the existence of special grounds for considering them.

The Court recalls that under the principle of equality of arms, as a feature of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present one’s case in conditions that do not place him at a disadvantage vis-à-vis to his opponent (see, e.g., the Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, pp. 380-381, § 47, and Kuopila v. Finland, no. 27752/95, 27.4.2000, § 37).

The Court notes that even if the applicant received a copy of T.’s observations in response to her appeal with some delay, she had been able to respond to his appeal within the stipulated time-limit. Whether or not any subsequent pleadings of hers would have been taken into account is a matter of speculation. There is no indication that the applicant was prevented from filing such observations before the Supreme Court’s deliberations took place.

In these circumstances the Court finds no indication that the applicant was unable to participate properly and in conformity with the principle of equality of arms in the proceedings before the Supreme Court. Accordingly, there is no appearance of a violation of Article 6 of the Convention in this respect either.

It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded pursuant to 35 § 4 of the Convention.

(iv)Allegedly inadequate reasoning of the courts

The applicant has further complained that the Court of Appeal failed to take her submissions duly into consideration, based its judgment on reasons not referred to by the parties and ordered her to pay damages despite the lack of evidence as regards T.’s alleged suffering. Neither did the Supreme Court examine all the points which she had raised in her appeal.

The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. When, for instance, dismissing an appeal an appellate court may simply endorse the reasons for the lower court’s decision (see the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2930, §§ 59-60, and Garcia Ruiz v. Spain, no. 30544/96, 21.1.1999, § 26, to be published in Reports 1999-I).

The Court finds no indication that the courts considered the applicant’s pleadings and the case as a whole in a biased, arbitrary or otherwise deficient manner violating the requirements of Article 6 § 1 of the Convention. Accordingly, there is no appearance of a violation of Article 6 in this respect either.

It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded pursuant to 35 § 4 of the Convention.

(v) Alleged violation of the presumption of innocence

The applicant has also invoked Article 6 § 2 of the Convention which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court has found above that the proceedings against the applicant do not disclose any unfairness within the meaning of Article 6, whether in respect of the alleged partiality of certain judges or for any other reason. Neither does the Court find any indication of a violation of Article 6 § 2.

The Court concludes that this aspect of the complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

(vi) Alleged lack of an effective remedy

The applicant has also complained that she was denied an effective remedy within the meaning of Article 13 of the Convention. In the present case the Court notes that the requirement flowing from this provision is absorbed by the more specific procedural guarantees of Article 6, which governs proceedings before the courts. As the Court has already examined the applicant’s grievances with respect to Article 6, no separate issue arises under Article 13 in the present case.

The Court concludes that this aspect of the complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Declares admissible, without prejudging the merits, the applicant’s complaint that her freedom of expression was violated;

Declares inadmissible the remainder of the application.

Vincent BergerGeorg Ress
RegistrarPresident

 

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