Mensenrechtenhof veroordeelt Finland voor wijze waarop politie anti-bontactivisten aanpakt (en)

The European Court of Human Rights has today notified in writing the following two Chamber judgments, neither of which is final [1]. (Both are available only in English.)

violation of Article 10

Goussev and Marenk v. Finland (application no. 35083/97) no violation of Article 13

violation of Article 10

no violation of Article 8

Case of Soini and others v. Finland (no. 36404/97) no violation of Articles 6 § 1 and 13

In the case of Goussev and Marenk the applicants, Elina Goussev and Michael Marenk, were born in 1980 and 1972 respectively and are Finnish nationals who live in Helsinki. In the case of Soini and others the applicants are 11 Finnish nationals born between 1973 and 1980 who all live in Helsinki with the exception of Soini who lives in Vantaa.

In November 1995 young demonstrators, critical of the department store Oy Stockmann Ab for selling fur coats, organised a sit-in on its premises in Helsinki. Around the same time pamphlets and posters appeared, criticising the fur trade in general and Stockmann in particular.

In March 1996 Stockmann requested a pre-trial investigation into the distribution of the printed material. The company also requested that the matter be brought to the attention of the public prosecutor if a criminal offence had been committed. The request was registered as a matter of suspected public defamation.

Goussev and Marenk v. Finland

In May and July 1996 the police searched the applicants' homes and seized pamphlets and other written material. According to police records, the searches were carried out as the applicants were under suspicion of committing public order offences during a demonstration in the Finnish Parliament.

The head of the pre-trial investigation made a request to the District Court for an extension to the time-limit on the seizures for use in an investigation into suspected public defamation. The applicants objected, asserting that a seizure on such grounds required that a request to that end be filed by the allegedly aggrieved party and that no such request had been made.

In December 1996 the Court of Appeal noted that the material had been seized in connection with searches conducted in the course of an investigation into an offence other than public defamation and ordered the return of the material. In May 1997 the police returned the seized material to the applicants.

In March 1998, the Deputy Ombudsman expressed the view that the seizure of material related to an offence under investigation other than the one in respect of which the search had been ordered was, in itself, not unlawful. She distinguished between a seizure of printed matter which was aimed at securing its use as evidence and 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. In her view, at least part of the material seized from the applicants had to be considered printed matter that 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 seizure.

Soini and others v. Finland

In the ensuing pre-trial investigation into the distribution of the anti fur trade pamphlets, 36 people, including the applicants, were heard as suspects in respect of the offence of public defamation.

In April 1996 the police, acting under the Coercive Measures Act, searched Mr Miettinen's home. According to the minutes, the search was carried out in the context of an investigation into malicious damage of which his room mates had been suspected. The police seized pamphlets and letters related to his participation in an association of anti-fur activists.

In June 1996 the police searched the homes of Ms Mikola and Ms Soini and seized similar documents, along with Ms Soini's diaries and a telephone note book. According to the minutes, the searches were carried out "for other investigation purposes". The district court extended the time-limit for the seizure of the material despite the applicants' appeals. The police lifted the seizure in May 1997.

In November 1996 the pre-trial investigation ended with a signed report and the applicants were subsequently charged. In June 1997 they were convicted of having violated Stockmann's domiciliary peace on 25 November 1995 and sentenced to terms of conditional imprisonment.

In June 1999 the Court of Appeal reversed the district court's judgment by acquitting the applicants in so far as they had been found guilty of violating domiciliary peace. While upholding the applicants' convictions of one or several other offences the court reduced their sentences to fines.

The applicants complained about the seizure from their homes of pamphlets in which the department store Stockmann was strongly criticised for selling fur coats. Applicants Soini, Mikola and Miettinen complained that the searches and seizures of their pamphlets and diaries violated their right to respect for their private lives. The same applicants along with Goussev and Marenk complained that their right to freedom of expression had been violated. All of the applicants in Soini and others except Soini herself, complained that they were still considered suspects in respect of the offence of public defamation and they also claimed, along with Goussev and Marenk that the seizures were kept in force for an excessive amount of time, for which they had no effective remedy.

The applicants in both cases relied on Article 10 (freedom of expression) and 13 (effective remedy). The applicants in Soini and others also relied on Articles 6 (right to a fair hearing). and 8 (right to respect for private life).

Article 8

In Soini and others the European Court of Human Rights found the Coercive Measures Act provided a legal basis for the searches and seizures carried out and that the interference to the applicants' rights could be regarded as necessary for the purposes of the protection of the rights of others and the prevention of crime. It also found that the materials had not been withheld for a disproportionate length of time. The Court held unanimously there had been no violation of Article 8.

Article 10

In both cases the Court observed that the relationship between the Coercive Measures Act and the Freedom of the Press Act was problematic. That was clearly illustrated in the case of Goussev and Marenk where differing views were taken by the Court of Appeal and the Deputy Ombudsman as to whether material could be seized on suspicion of defamation during a search based on other grounds. Both positions found some support in the applicable domestic law, which however, at the time, provided no guidance on to how to resolve a conflict between the legislative regimes. It was therefore not clear as to the circumstances in which the police could seize material which was potentially defamatory during a search which was being carried out for the purposes of finding evidence of another suspected crime.

The Court noted, in that respect, that the Act on the Exercise of Freedom of Expression in Mass Media, which repealed the Freedom of the Press Act as from 1 January 2004, was passed with the purpose of clarifying the relationship between the legislative provisions on publications and the Coercive Measures Act.

The Court found that the law, as it then stood, did not provide the necessary foreseeability and that the interference to the applicants' rights was therefore not prescribed by law. The Court concluded unanimously that there had been a violation of Article 10 in both cases.

Article 6

In Soini and Others, the Court noted that, according to Finnish practice, the police listed possible suspects on the first page of the pre-investigation report. The applicants' names were not listed and no steps had been taken against them in respect of those charges. The Court found that that report might be regarded as terminating the investigation vis-à-vis the applicants, who then ceased to be under a criminal charge for the purposes of Article 6 in respect of those offences. Furthermore, the Court noted that the report was a public document and that the applicants had been legally represented. They would have been aware of their position when charges were issued against those named as suspects in the pre-trial report. On the basis of those considerations, the Court found unanimously that there had been no violation of Article 6 § 1.

Article 13

In Soini and Others, the Court also found that there had been no violation of Article 13 since the applicants could have clarified their standing with the prosecutor at any time.

In Goussev and Marenk, the Court noted that the applicants had challenged the seizures in the Court of Appeal, which had jurisdiction in fact and law and the power to award redress. The Court therefore accepted that there had been sufficient national remedies available against the seizures and held unanimously that there had been no violation of Article 13.

Under Article 41 of the Convention (just satisfaction) the Court awarded 1,000 euros (EUR) each to Ms Goussev, Mr Marenk, Ms Soini, Ms Mikola and Mr Miettinen for non-pecuniary damage. As for costs and expenses, it awarded EUR 400 to Ms Goussev, EUR 1,030 to Mr Marenk and EUR 425.90 each to Ms Soini, Ms Mikola and Mr Miettinen.

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These summaries by the Registry do not bind the Court. The full texts of the Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.