A. v. FINLAND
Inadmissible
Georg Ress
The applicant A. is a Finnish national, who was born in 1946. He is a lawyer and a member of the Finnish Bar Association. He is not represented before the Court. The respondent Government are represented by their Agent, Mr A. Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. As from 1994 onwards the applicant represented his clients together with Professor E., a professor of law, in criminal proceedings in which the applicant’s clients were complainants. On 19 March 1997 the District Court (käräjäoikeus, tingsrätten) of Helsinki rejected the claims submitted on behalf of the applicant’s clients. The applicant and E. submitted a lengthy (151 pages) notice of appeal to the Court of Appeal (hovioikeus, hovrätten) of Helsinki on behalf of their clients, criticising the District Court’s decision and related procedural matters. The Finnish Bar Association (Suomen Asianajajaliitto, Finlands Advokatförbund) sent a letter to the applicant on 2 October 1997, informing him that the presiding judge in the above-mentioned proceedings, J., had complained to the Bar Association about the allegedly defamatory language used by the applicant in the notice of appeal. The language was described by J. as being below acceptable standards and inappropriate for a member of the Bar Association. She also stated her dissatisfaction with the way the applicant had belittled her reasoning. In her opinion it was alleged several times that she had judged the case arbitrarily. The applicant was invited to submit his observations. The applicant submitted his response to the complaint to the Bar Association on 6 October 1997, denying all the allegations and arguing also that the complaints were unspecified. On 14 November 1997 the Board of Directors of the Bar Association decided to transfer the complaint to the Bar Association Disciplinary Board (kurinpitolautakunta, disciplinnämnden). The decision was communicated to the applicant by sending him a copy of the relevant part of the minutes of the meeting from which it appeared that the Board of Directors had drafted a list of the allegedly defamatory statements included in the notice of appeal. The list was three pages long, consisting of some 30 references to the notice of appeal. On 13 January 1998 the applicant submitted his further comments to the Disciplinary Board, insisting that J. be told to particularise her complaints. On 16 January 1998 the observations were communicated to J., who was informed that the correspondence had been terminated and that the Disciplinary Board would examine the matter in its meeting on 13 February 1998 and that she would be informed of the decision. A copy of the letter was also sent to the applicant. According to the Government, the Disciplinary Board examined the case in two meetings. On 13 February 1998, the examination of the case was postponed and a copy of the minutes was served upon the applicant on 23 March 1998. The Disciplinary Board resumed its examination and decided the case on 30 March 1998. A copy of the record was served upon the applicant on 11 June 1998. When deciding the case, the Disciplinary Board also decided that an abstract of the case, which did not disclose the applicant’s identity, be published in Defensor Legis, the Bar Association’s journal. The wording of the abstract was approved in the Disciplinary Board’s meeting on 13 May 1998 and it was published the same year. The Government admit that some of the information provided to the applicant concerning the proceedings was incorrect. According to the applicant, he was informed, after inquiry about the state of the proceedings, that the examination of his case had been adjourned until 30 March 1998. After that meeting he was informed that the case was adjourned until the meeting of 13 May 1998. Contrary to the above information however the applicant received, on 12 June 1998, a copy of the Disciplinary Board’s decision, stating that the Board had decided on 30 March 1998 to give him a warning. On 17 June 1998 the applicant was informed by the Bar Association that his case had been decided by the Disciplinary Board on 13 May 1998. Regardless of his inquiries addressed to the Bar Association, the applicant claims that he is still unaware of the date on which the decision was actually made. The Disciplinary Board’s decision of 30 March 1998 reads: “The Disciplinary Board of the Finnish Bar Association has examined a complaint made by J. to the Board of Directors concerning attorney A and noted the following: A has in an appeal to the Court of Appeal together with another person named and criticised the presiding judge J. A has submitted that the reason for his criticism was the fact that the decision which dismissed his claims by one vote turned on the opinion of the presiding judge. In the lengthy notice of appeal the presiding judge was criticised in, inter alia, the following terms: J. defends the accused. J.’s conduct seems goal-directed. J. began her decision with an unintelligent statement. J.’s presentation is prejudiced and one-sided. J. dismissed the charge on artificial grounds and made up one of the grounds all by herself. J. based her judgment on a fairytale. J.’s fumblings are naive. J. manages to deal with one point by changing the contents of the accused’s statement. J. falsifies the facts. J. made up grounds for dismissing the charges and the grounds can be described as nit-picking. J.’s findings are groundless. J. has at some point of the trial made a predetermined decision to dismiss all the charges and twisted the facts accordingly. According to the attorney’s code of conduct an attorney is, when appealing against a judgment, not allowed to use belittling expressions of the court or in any other manner subject the court’s work or its decisions to impertinent criticism. The Disciplinary Board notes that apart from the expressions given as examples above, the notice of appeal as a whole contains belittling and impertinent criticism aimed personally at the presiding judge of the court. In some of the statements cited above J. is referred to as being guilty of lack of judgment, prejudice, falsification of facts and partiality in one party’s favour. If this were to be proven correct, it would mean that J. has abused her office. A has not submitted that he has taken any legal steps in that regard. The Disciplinary Board finds that A has acted in violation of the attorney’s code of conduct. The Disciplinary Board issues a warning.” The Finnish Bar Association is a registered entity and its duties are set out in legislation. Apart from protecting the interests of its members, it has certain public duties by virtue of the Advocates Act (laki asianajajista, lagen om advokater 495/1958). According to section 3 (1) of the Advocates Act, a member of the Association shall, inter alia, be at least 25 years old, have full legal capacity and be honest and suitable for acting as attorney. Section 6 imposes a duty upon the Board of Directors of the Bar Association to ensure that the attorneys comply with their obligations. By virtue of section 6a (1) disciplinary powers are vested in the Bar Association Disciplinary Board. This body is independent, but any decision to expel a member must, however, be submitted to the Board of Directors for approval. By virtue of section 6 (2) the members of the Board of Directors must act judicially when deciding disciplinary matters against an attorney, as must the members of the Disciplinary Board by virtue of section 6a (3). Under section 7, the Bar Association has an obligation to take, when necessary, disciplinary measures. Such measures must be taken, if the member has intentionally acted in a wrongful or dishonest manner, neglected his, or her, obligations as an attorney, acted in violation of the attorney’s code of conduct or committed an act which may be harmful to the reputation of the legal profession. The disciplinary measures consist of expulsion, issuing a public warning, a non-public warning or an admonition. For instance, if the member has acted in violation of the attorney’s code of conduct, he must be issued with an admonition or a warning, or, if the circumstances are grave, be expelled from the Bar Association. An attorney, who has been expelled or given a public warning, has under section 10 (1) of the Advocates Act the right to appeal against the decision to the Court of Appeal of Helsinki, which has full jurisdiction in the case. Under subsection 2, the Chancellor of Justice has the right to appeal against any decisions on disciplinary matters. Thus, the attorney concerned has no appeal against a written warning given by the Disciplinary Board, unless the Board has decided to make the warning public. The provisions in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) concerning the right to an oral hearing before the Court of Appeal were amended by an act (165/1998) which entered into force on 1 May 1998, i.e. after the Disciplinary Board gave its decision in the present case, but before it was served upon the applicant. By virtue of the entry into force and the transitional provisions the new provisions apply to a case that after their entry into force become pending before the Court of Appeal as the court of first instance. According to the new provisions in the Code of Judicial Procedure, inter alia, chapter 26, section 14, an oral hearing shall be held in the Court of Appeal, if a party to a civil case or the injured party or the defendant in a criminal case so requests. However, such a hearing need not be held for the reasons mentioned above if, inter alia, the holding of a hearing is manifestly unnecessary. Under the previous law the Court of Appeal could hold an oral hearing if it considered it necessary. The reservation made by Finland in accordance with Article 64 (now 57) of the Convention, according to which Finland cannot guarantee a right to an oral hearing insofar as the Finnish laws do not provide for such a right, concerned the courts of appeal until the entry into force of the amendment of 1 May 1998.