FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17532/09
by Mika Tapani AROLAINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 9 November 2010 as a Committee composed of:
Lech Garlicki, President,
Ján Šikuta,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Registrar,
Having regard to the above application lodged on 27 March 2009,
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, Mr Mika Tapani Arolainen, is a Finnish national who was born in 1963 and lives in Hyvinkää. He was represented before the Court by Mr Mikko Lehti, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 September 2003 the applicant was first questioned by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) on suspicion of having bought and resold stolen or otherwise unlawfully obtained work machines and diesel generators owned by Belgian, Dutch and German companies. On 16 March 2004 the applicant was remanded in custody. He was released on 16 April 2004. On that date the Hyvinkää District Court (käräjäoikeus, tingsrätten) placed a prohibition on transfer order (hukkaamiskielto, skingringsförbud) on the applicant’s property. The pre-trial investigation was completed on 9 February 2005. The investigation material, along with the applicant’s final statement, was submitted to the prosecutor on 22 February 2005.
Subsequently, the public prosecutor brought charges for receiving offences against the applicant and another suspect. The case became pending before the District Court on 14 October 2005.
According to the Government, the applicant asked several times for the examination of the case to be adjourned. His first request to that end was made on 7 December 2005. Following the applicant’s last request of 15 December 2007, the District Court invited the applicant to file his written submissions by 15 January 2008.
In the meantime, on 13 January 2006, the applicant filed a written request with the National Bureau of Investigation requesting access to a number of documents concerning his telephone surveillance between 26 November 2003 and 25 February 2004 and telephone metering information obtained between 13 October 2001 and 25 February 2004. More specifically, he requested the following: hard copies of the requests made to telephone operators for telephone metering information, hard copies of the records concerning the use of coercive measures, hard copies of documents concerning restricted information, recordings of telephone conversations burned on CD, tables of telephone metering information burned on CD and illustrations drawn up by the police burned on CD.
By its decision of 7 February 2006 the National Bureau of Investigation granted the applicant the opportunity to listen and view at the police premises, in supervised conditions, those recordings of telephone conversations and telephone metering information which concerned him personally. He was, however, asked to specify that information which might have or might have had an impact on the criminal proceedings against him. In other parts the applicant’s request was refused. The authority gave detailed reasons for its decision referring, inter alia, to the large amount of material gathered and confidentiality of some of that information. Moreover, no documents concerning restricted information or illustrations existed. As a general observation the authority submitted that the information obtained through telephone metering and surveillance had not been relied on as evidence in the pre-trial investigation and they had thus not been submitted to the prosecutor or the court to be used in the proceedings against the applicant.
The applicant appealed against that decision to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen). On 9 March 2007 that court revoked the police authority’s decision as regarded the requests made to telephone operators for telephone metering information, records concerning the use of coercive measures, recordings of telephone conversations and tables of telephone metering information finding that the applicant was entitled to that information in its entirety. The court accepted, however, the police authority’s decision not to give that information in CD format, as far as a request to that end had been made. The court dismissed the remainder of the applicant’s appeal.
Both the applicant and the National Bureau of Investigation appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). According to that court’s ruling of 1 October 2007 the applicant had the right of access, firstly, to hard copies of the requests made to telephone operators for telephone metering information and of the records concerning the use of coercive measures. Secondly, he had the right of access to the recordings of telephone conversations and tables of telephone metering information, with restrictions stipulated in the decision of 7 February 2006 by the National Bureau of Investigation.
On 22 August 2008 the District Court held a preliminary hearing, where the applicant pleaded his innocence. He pointed out that tax inspections had been conducted into his business activities, information about his money transactions had been obtained from the bank, his telephone had been placed under surveillance and house searches had been conducted on his property. However, no incriminating evidence had been found. The only “evidence” against him was the assumptions and allegations made by the co-defendant, which could not be considered credible.
In that preliminary hearing the prosecutor informed the court that the police had tried to reach all foreign civil parties by way of international legal assistance. However, all the civil claims had not yet been submitted. The District Court then made a procedural decision not to postpone the main hearing of the case pending receipt of possible further civil claims. The court found that this would take a considerable amount of time and since the earliest offences allegedly committed by the defendants dated back to 1999, the interest of the accused to have the criminal case against them examined carried greater weight than the right of individual civil parties to make their claims in the criminal proceedings. According to the court, such claims could be made later in separate civil proceedings.
The main hearing was held between 8 and 19 September 2008. The court received testimony from both defendants and 16 witnesses. One of the investigators confirmed before the court that no incriminating evidence against the applicant had been found by way of tax inspection, telephone surveillance or home searches.
On 3 October 2008 the District Court acquitted the applicant of all charges. The security measure was, however, to remain in force until the judgment was final. In its reasons the court found that no evidence had been produced to support the allegation that the applicant had been aware of the unlawful origin of the machinery. Moreover, no indicators existed regarding the price and the physical appearance of the machines that would have given the applicant reason to doubt the lawfulness of their origin. No such indicators existed regarding the relevant documentation and other circumstances of the purchase either.
The applicant claimed costs and expenses in the amount of 49,982.78 euros. The District Court noted that according to the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål, Act no. 689/1997) a person acquitted of charges was entitled to reasonable legal costs from the State funds. The court referred to the Supreme Court precedent no. KKO 2006:94 in stating that the liability by the State comprised reasonable costs incurred by necessary measures. The court observed that the applicant’s claims included, inter alia, a written statement from a professor in criminal law, costs incurred by the applicant’s visit to the Netherlands and the fee paid to a Dutch attorney. The court observed that even though the applicant had, in principle, the right to build his defence in the manner he saw fit, the case at hand had not been so complex, nor the case-material so vast and obscure, as to warrant obtaining a legal expert opinion. No costs were thus awarded in that part. In the court’s view, the costs incurred by the applicant’s visit to the Netherlands and consultation with the Dutch attorney had not been necessary for his defence either.
The District Court noted that the applicant had also claimed costs incurred in the above-mentioned administrative proceedings. The court found that those proceedings were connected to the criminal proceedings in that they involved the applicant’s right of access to material gathered through telephone surveillance. The court found, however, that the administrative courts had already given a ruling concerning costs incurred in those proceedings. Moreover, the prosecutor had not in any part relied on the information gathered through the telephone surveillance as evidence against the applicant. It followed that it had not been necessary for the applicant’s defence to obtain knowledge of that material. Neither had the applicant himself invoked any part of that material in his defence. For these reasons, the court did not find the State liable for the costs incurred in the administrative proceedings either. The applicant was awarded 28,299 euros which included the costs of his legal representation by counsel in the criminal proceedings and a witness fee.
The parties did not appeal against the District Court’s judgment, which became final on 13 October 2008. According to the Government, the prohibition on transfer order on the applicant’s property was lifted on 6 November 2008.
THE LAW
The applicant complained under Article 6 § 1 of the Convention about the length of the above criminal proceedings.
Article 6 § 1 reads insofar as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government contested that argument.
A. The parties’ submissions
The Government contended that the different stages in the criminal proceedings met the reasonable time requirement having regard to the complexity of the case. The case file was extensive and during the pre-trial investigation several requests for international legal assistance had been made to foreign authorities. Also, a large number of complainants were involved. The District Court had made a particular effort to speed up the proceedings by deciding to go ahead with the examination of the charges without waiting for all the complainants to present their civil claims in conjunction with the criminal proceedings.
The Government argued that the length of the proceedings before the District Court was to a large extent caused by the applicant’s own conduct. The adjournments requested by the applicant had delayed the trial by more than two years. The Government pointed out, in particular, that the applicant had refused to acquaint himself with the recordings of telephone conversations on the police premises, although that opportunity had been provided by the National Bureau of Investigation. Instead, he had chosen to wait until the appeal proceedings before the administrative courts had come to an end before submitting his final written submissions to the District Court in the criminal proceedings. In granting the adjournments requested by the applicant the trial court had respected the applicant’s right to have adequate time and facilities for the preparation of his defence.
The Government concluded that there had been no periods of inactivity on the part of the authorities in the criminal proceedings against the applicant.
The applicant submitted that he had already on 4 July 2005 made a request to have access to telephone surveillance material to the National Bureau of Investigation. This request was made orally and was later followed by two other similar requests until the police informed him that such a request was to be submitted in writing. A written request was then filed by the applicant on 13 January 2006. The National Bureau of Investigation gave its decision on 7 February 2006, that is, more than seven months after the first request. This delay by the police had contributed to the overall length of the proceedings.
The applicant contested the Government’s argument that he had turned down the possibility to listen to the recordings at the police premises. In its decision the National Bureau of Investigation had obliged the applicant to specify the conversations which he wished to hear. Having regard to the lapse of time, it had been impossible for the applicant to fulfil that obligation. The applicant had submitted his written statement in the criminal proceedings without delay after the adoption of the final decision in the administrative proceedings. The District Court’s preliminary hearing had not taken place until seven months later.
The applicant further referred to the cases of Natunen v. Finland (no. 21022/04, 31 March 2009) and Janatuinen v. Finland (no. 28552/05, 8 December 2009) where the Court had found a violation in that the defendants in those cases had been deprived of adequate facilities for the preparation of their defence as they could not obtain access to all material gathered through telephone surveillance.
B. The Court’s assessment
The period to be taken into consideration began on 19 September 2003 when the applicant was first questioned by the police. On 3 October 2008 the District Court gave its judgment, which became final on 13 October 2008. The Court finds that the criminal proceedings against the applicant ended on 6 November 2008 when, according to the Government, the security measure on the applicant’s property was discontinued. They thus lasted nearly five years and two months for one level of jurisdiction.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
The Court notes that the District Court’s reasoning does not support the Government’s view that the case was complex or that the case material was exceptionally large. It is to be noted, however, that during the pre-trial investigation requests for international legal assistance were made to foreign authorities, which might have had an effect on the length of some one year and five months at that stage of the proceedings. The Court finds that any delay thus caused cannot be considered solely the Finnish authorities’ responsibility.
The time taken by the public prosecutor for the consideration of charges, less than eight months, does not seem unreasonable.
As to the proceedings before the District Court, the Court observes that the trial proceedings began on 14 October 2005. They were concluded on 6 November 2008 when the interim measure against the applicant was lifted. They thus lasted almost three years and one month. However, a significant part of the time taken before the District Court was due to the parallel administrative proceedings instituted by the applicant. The time elapsed between the applicant’s first request for an adjournment in the criminal proceedings, made on 7 December 2005, and the time-limit set at 15 January 2008 by the District Court for the applicant’s written submissions after the final adjournment of the case, amounts to over two years and one month. Thus, the actual processing of the case by the District Court did not exceed one year which, in the Court’s view, cannot be considered unreasonable.
The Court notes that the applicant has not complained about the length of the parallel administrative proceedings. In fact, he has not raised any complaint concerning those proceedings. It transpires from the District Court’s reasoning that the applicant took a number of measures during the criminal proceedings which that court did not consider necessary for his defence. It is undisputable that the time elapsed before the National Bureau of Investigation and the administrative courts delayed the adoption of the District Court’s judgment in the criminal proceedings, but that delay is not, in the Court’s view, attributable to the State. According to the District Court the information gathered through the telephone surveillance had not formed any part of the evidence produced to it, neither by the prosecutor nor by the applicant.
Even though the outcome of the administrative proceedings did not, effectively, contribute to the applicant’s defence, the Court finds strength in the Government’s argument that by acceding to the applicant’s request for adjournments for the purpose of obtaining access to material gathered through telephone surveillance the District Court allowed him to exercise his right to prepare an adequate defence. The Court finds the delay thus caused, in the specific circumstances of this case, attributable to the applicant himself.
Having regard to the above, the Court concludes that the overall length of the criminal proceedings against the applicant, as far as it is attributable to the State, cannot be regarded as having exceeded a reasonable time. It thus rejects the applicant’s complaint under Article 35 §§ 3 (a) and 4 of the Convention as manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLech GarlickiDeputy Registrar President
Full & Egal Universal Law Academy