FIRST SECTION
DECISION
Application no. 56936/13
Veikko EKLUND
against Finland
The European Court of Human Rights (First Section), sitting on 8 December 2015 as a Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Päivi Hirvelä,
Linos-Alexandre Sicilianos,
Paul Mahoney,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 6 September 2013,
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
1. The applicant, Mr Veikko Eklund, is a Finnish national who was born in 1947 and lives in Helsinki. He was represented before the Court by Mr Matti Jousinen, a lawyer practising in Helsinki.
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Apparently in 1997 the applicant was subject to an enforcement inquiry (ulosottoselvitys, utsökningsutredning) in which he had to provide information on his assets, debts and income. Another enforcement inquiry was carried out on 9 February 2004.
First set of criminal proceedings
5. On 10 March 2008 the applicant was charged on two counts of making a false statement in court (perätön lausuma tuomioistuimessa, osann utsaga inför domstol) as he had, inter alia, given false information in 2006 and 2007 before the domestic courts in a matter in which he was heard as a witness.
6. On 14 May 2008 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a suspended prison sentence of five months.
7. The applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten).
8. On 18 June 2010 the Helsinki Appeal Court upheld the District Court judgment. Justice P.V. was part of the composition of the Appeal Court. The Appeal Court judgment became final as no appeal was lodged.
Second set of criminal proceedings
9. On 17 January 2011 charges were pressed against the applicant who was accused, inter alia, of aggravated debtor’s fraud (törkeä velallisen petos, grovt gäldenärsbedrägeri) for not having declared, during the enforcement inquiry on 9 February 2004, the real estate which was used as his principal residence but which was officially owned by a limited liability company, all of whose shares were owned by the applicant’s children.
10. On 11 January 2012 the District Court convicted the applicant of, inter alia, aggravated debtor’s fraud for failing to declare the above real estate on 9 February 2004 and sentenced him to a total of two years and ten months in prison. The court found that the applicant had been obliged to declare the property concerned and since he had not done so during the inquiry on 9 February 2004, he was guilty of concealing his property.
11. By letter dated 9 February 2012 the applicant appealed to the Appeal Court, requesting that the District Court judgment be quashed. He alleged in particular that the District Court had not explained why, on 9 February 2004 during the enforcement inquiry, he should have declared the real estate as his personal property when it was owned by a limited liability company. The company had obtained legal confirmation of ownership (lainhuuto, lagfart) and had been officially entered in the land register as the owner of the real estate. The property rights of the company or its shareholders were never even put into question. The applicant claimed that he had given truthful information on 9 February 2004.
12. On 11 September 2012 the oral hearing started before the Appeal Court and the names of the justices sitting in the composition became known to the parties. The oral hearing continued on 12, 14, 24 and 25 September 2012.
13. On 6 November 2012 the Appeal Court upheld the District Court judgment as far as the count of aggravated debtor’s fraud was concerned. It agreed with the lower instance that during the enforcement inquiry on 9 February 2004 the applicant had been obliged to declare the property concerned and since he had not done so the conviction should be upheld. Concerning any possible issue of self-incrimination, the Appeal Court found it established that on 9 February 2004, during the enforcement inquiry, the applicant had not been charged with any crime. He had not therefore had any right to remain silent on 9 February 2004 but should have declared the real estate. This judgment was delivered by the Appeal Court composition which included Justice P.V.
14. By letter dated 18 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He also referred to the prohibition on self-incrimination and claimed that, when making his statement on 9 February 2004, it could not be ruled out that he could have been accused of debtor’s fraud, had he given any information. Moreover, he claimed that Justice P.V. had been biased as he had been part of the Appeal Court composition also on 18 June 2010 when the applicant had been convicted of making a false statement in court.
15. On 11 March 2013 the Supreme Court refused the applicant leave to appeal.
Extraordinary proceedings
16. By letter dated 20 August 2013 the applicant lodged an extraordinary appeal with the Supreme Court, requesting that the Appeal Court judgment of 6 November 2012 be annulled and the proceedings reopened due to the fact that the Appeal Court had been biased and the prohibition of self‑incrimination had been violated.
17. On 7 May 2014 the Supreme Court refused the applicant’s request for annulment and reopening.
B. Relevant domestic law
18. At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act (ulosottolaki, utsökningslagen, Act no. 37/1895, as amended by Act no. 679/2003). These provisions stated that, for the purpose of obtaining the necessary information for enforcement, the Bailiff could carry out an enforcement inquiry. For the enforcement inquiry, the debtor had to provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He also had to give information about the whereabouts of any object or document which, by a judgment, he had been ordered to give to another person or which by law had to be given to the enforcement authority.
19. In the enforcement inquiry, the debtor had to provide such information as was necessary to establish whether property disposed of and related transactions could be recovered for the purposes of enforcement. Where requested by the Bailiff, the debtor in the enforcement inquiry had to prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor.
20. If the debtor or his or her representative failed to comply with their obligations, the Bailiff could order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. Payment of the administrative fine was ordered if the obligations had not been fulfilled or had been contravened without a valid reason.
21. As from 1 March 2004 Chapter 3, section 73, of the Enforcement Act contained also a provision prohibiting the Bailiff from transmitting incriminating information to other authorities. This provision read as follows:
“The Bailiff must not disclose information which has to a substantial extent been received from:
...
2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges for the debtor;
...”
22. The Enforcement Act was replaced by the Code of Enforcement (ulosottokaari, utsökningsbalken, Act no. 705/2007) with effect from 1 January 2008. The contents of the relevant provisions essentially remained the same.
23. Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code (rikoslaki, strafflagen, Act no. 39/1889, as amended by Act no. 769/1990).
COMPLAINTS
24. The applicant complained under Article 6 § 1 of the Convention that one of the Appeal Court justices had been biased as he had already, in 2010, participated in another, related case where the applicant had been convicted, and that he had therefore been prejudiced.
25. He also complained under the same Article that the prohibition against self-incrimination had been violated as he had been convicted by the Appeal Court in 2012 for not having declared all his assets on 9 February 2004 during the enforcement inquiry. He claimed that he could not have deviated from what he had declared in an earlier enforcement inquiry in 1997 as, had he provided different information in the inquiries of 1997 and 2004, charges could have been brought against him in respect of the 1997 inquiry.
THE LAW
A. Complaint concerning alleged bias
26. The applicant complained under Article 6 § 1 of the Convention that one of the Appeal Court justices had been biased.
27. Article 6 § 1 of the Convention reads, in relevant parts, as follows:
“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.”
28. The Government raised the objection that the applicant had not exhausted the domestic remedies as required by Article 35 § 1 of the Convention. An applicant was requested to raise the issue of alleged partiality as soon as he or she became aware of the composition of the court which he or she felt appeared partial. In the present case the applicant did not raise the issue of alleged partiality before the Appeal Court as soon as he became aware of the names of the justices sitting in the composition, which happened at the latest when the first session of the oral hearing before that court began on 11 September 2012. He could also have done so during the other four sessions of the oral hearing before that court. The applicant’s failure to do so could not be excused by the fact that he had had different counsel representing him in the first and second sets of proceedings, nor by the fact that he himself had not been present at the hearing before the Appeal Court. The applicant had thus failed to exhaust the domestic remedies and this complaint should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
29. The Government noted that, in any event, this complaint was manifestly ill-founded. When assessing the impartiality of Justice P.V. from the point of view of the subjective test, it was evident that the facts of the case disclosed no proof that he had displayed hostility, bad faith or that he had arranged to have the case assigned to himself for personal reasons. Justice P.V. held no such bias as to affect his impartiality in the present case. As to the objective test, the Government stressed that the fact that Justice P.V. had sat on the bench on cases dealing with different legal matters did not give rise to any doubts as to his impartiality. The two sets of proceedings had concerned different questions of law and evidence. The penal provisions on false statement in court and fraud by a debtor did not share common elements of crime. Moreover, the witness statements had concerned different issues. For these reasons the two sets of proceedings could not be considered to be consecutive or even part of the same legal proceedings. Consequently, this complaint was manifestly ill‑founded and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
30. The applicant maintained that Justice P.V. had been biased. In both sets of proceedings the same written evidence and testimony of the same witnesses had been admitted. The applicant had been imprisoned both before and after the trial and had not therefore had access to any legal documents regarding the previous court proceedings, nor had his counsel had any knowledge of any previous trial. In this situation it had been impossible for the applicant to make any claims concerning the judge’s bias. The Justice P.V. himself should have withdrawn from the latter criminal proceedings.
31. The Court notes first of all that the Government raised the objection that the applicant did not exhaust the domestic remedies when he failed to raise the issue of alleged partiality of Justice P.V. before the Appeal Court as soon as he became aware of the names of the justices sitting in the composition, that is, at the latest during the oral hearing. He only raised this issue in his letter of appeal to the Supreme Court.
32. The Court has found in its earlier case-law that, in case of alleged bias of Appeal Court justices, an applicant should raise this issue either before the Appeal Court itself or in his or her appeal to the Supreme Court (see Nikula v. Finland (dec.), no. 31611/96, 30 November 2000). In the present case, the applicant failed to raise the alleged partiality issue before the Appeal Court but did raise it in his letter of appeal to the Supreme Court, so the Court considers that he has exhausted the domestic remedies within the meaning of Article 35 § 1 of the Convention. The Government’s objection must therefore be rejected.
33. Turning to the substance of the applicant’s complaint, the Court notes that the existence of impartiality for the purposes of Article 6 § 1 of the Convention must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, by ascertaining whether the judge offered guarantees sufficient to rule out any legitimate doubt in this respect (see, for example, Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII; and Morice v. France [GC], no. 29369/10, § 71, 23 April 2015).
34. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 76, ECHR 2007‑IV). In the present case, the applicant has adduced no evidence to suggest that Justice P.V. was personally biased.
35. Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Lindon, Otchakovsky-Laurens and July v. France [GC], cited above, § 77).
36. In the present case the applicant’s complaint regarding the alleged partiality of Justice P.V. is based on the fact that he was part of the Appeal Court composition in two different sets of criminal proceedings against the applicant. The first set of proceedings concerned criminal proceedings against the applicant in which he was convicted of making a false statement in court. The second set of proceedings concerned charges against the applicant for, inter alia, aggravated debtor’s fraud. The Court observes that the two sets of proceedings concerned thus different questions of law and evidence. As noted by the Government, the penal provisions on false statement in court and aggravated debtor’s fraud did not share any common elements of crime. Moreover, the witness statements given in these cases also concerned different issues. Furthermore, the Court notes that the first case was decided by the Appeal Court in June 2010 while the second one was decided only in November 2012.
37. In the instant case the Court does not find that the actions of the judge in question undermined the guarantee of impartiality of the Appeal Court. The mere fact that Justice P.V. sat in the composition of that court in two sets of criminal proceedings against the applicant did not affect the court’s impartiality as the two sets of proceedings before it related to two different sets of charges and there was no factual or legal nexus between them (see, mutatis mutandis, Lindon, Otchakovsky-Laurens and July v. France [GC], cited above, §§ 78-79; Gillow v. the United Kingdom, 24 November 1986, § 73, Series A no. 109; and Lie and Berntsen v. Norway (dec.), no. 25130/94, 16 December 1999). As in the present case the impugned criminal proceedings concerned different legal issues, the case differs from the case San Leonard Band Club v. Malta in which the trial judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, that is to say, to judge themselves and their own ability to apply the law (compare and contrast San Leonard Band Club v. Malta, no. 77562/01, § 63, ECHR 2004‑IX). The Court therefore concludes that the applicant’s fears were not objectively justified in the present case. Consequently, the Appeal Court must be regarded as having been impartial.
38. Accordingly, this complaint is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint concerning the alleged self-incrimination
39. The applicant also complained under Article 6 § 1 of the Convention that the prohibition against self-incrimination had been violated as he had been convicted by the Appeal Court in 2012 for not having declared all his assets on 9 February 2004 during the enforcement inquiry.
40. The Government maintained that, in the present case, the enforcement inquiry had not been carried out in order to obtain information for clearing up an offence already committed, nor was the information received used as evidence of such an offence in criminal proceedings. The applicant had committed an offence by providing insufficient or false information for the inquiry. Consequently, his conviction did not violate the prohibition of self-incrimination.
41. The Government argued that the circumstances of the present case differed from those in the case Marttinen v. Finland (no. 19235/03, 21 April 2009) where the information received could have been relevant to the on‑going pre-trial investigation which had been pending at the same time. Even if the applicant had given different information in an earlier inquiry, he would not have risked prosecution as the obligation to provide information in each inquiry only concerned the applicant’s property at the time of that inquiry. Nor could an act be deemed debtor’s fraud if the debtor rectified the misleading information before it affected the enforcement proceedings. A rectification removed the punishability of the act and therefore no risk of prosecution existed.
42. The Government noted that at the time of the 2004 inquiry, no criminal proceedings were even expected against the applicant as such proceedings were only instituted at a later date. The purpose of that inquiry had not been to obtain information about a possible offence committed in 1997 and the applicant had not been put under pressure in order to obtain such information. Moreover, the domestic legislation at the time prevented the Bailiff from using information received in such an inquiry for the purposes of bringing charges against the debtor. Since 1 March 2004 this prohibition also applied retroactively to creditors. As this amendment had been published in July 2003, the applicant had had no cause to assume that the information given by him during the enforcement inquiry of 9 February 2004 would be used against him. In addition, according to the domestic legislation, the protocol of an enforcement inquiry was also a secret document, the content of which could not be disclosed. There were thus efficient procedural safeguards against using information from the enforcement inquiry in criminal proceedings.
43. The Government pointed out that the debt collection authorities were independent from the pre-trial investigation authorities and that they had no competence in the investigation of crimes. Therefore, the Government maintained that this complaint was also manifestly ill‑founded and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
44. The applicant argued that, before the amendment of the Enforcement Act entered into force on 1 March 2014, the Bailiff had the right to submit information to another execution authority, also where the information had been classified as secret under the Finnish legislation. Similarly, if there was reason to suspect that the debtor had committed a crime, the Bailiff also had the right to submit necessary information to the prosecutor and pre-trial investigation authorities. The debt collection procedure was not independent from the pre-trial investigation. In the applicant’s case the execution authorities had reported the matter to the pre-trial investigation authorities three years after the execution report had been drawn up on 9 February 2004, which was of significance in the assessment of the prohibition of self‑incrimination.
45. The Court reiterates that the privilege against self-incrimination or the right to remain silent are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 (see, among other authorities, Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009; and John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996-I). The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seeks to prove the case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, for example, Jalloh v. Germany [GC], no. 54810/00, §§ 94-117, ECHR 2006‑IX; O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 53-63, ECHR 2007-III; Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002-IX; and Saunders v. the United Kingdom, 17 December 1996, §§ 68-69, Reports 1996-VI).
46. The Court notes that the applicant complained under Article 6 § 1 of the Convention that his right to silence and privilege against self‑incrimination had not been respected by the domestic courts in that he was convicted of aggravated debtor’s fraud for having failed to account for certain assets in the enforcement inquiry on 9 February 2004. According to the applicant, by furnishing the Bailiff with that information, he would have deviated from what he had declared in an earlier enforcement inquiry in 1997 and thereby contributed to the filing of criminal charges against him.
47. The Court observes that the enforcement inquiry, as regulated in Finnish law, is a formal procedure in which the debtor must, under threat of certain sanctions, give an overall account of his assets and other financial means for the purposes of enforcement and in the interest of the creditors. In order for the Bailiff to be able to decide whether there are assets which can be recovered and used to satisfy the creditors, the debtor must also provide information on assets handed over to others and about transactions carried out by him. An enforcement inquiry is resorted to if it has not been possible to establish otherwise the debtor’s financial situation in a reliable manner.
48. It appears from the case file that, at the time of the 2004 inquiry, no criminal charges were brought against the applicant. According to the Government, no criminal proceedings were even expected against the applicant at that time. The Court therefore accepts that the information received from the 2004 inquiry was not used as evidence in any pending or anticipated criminal proceedings at the time.
49. It was only in 2011 that charges for aggravated debtor’s dishonesty as well as for aggravated debtor’s fraud were brought against the applicant. Irrespective of what the applicant declared or failed to declare on 9 February 2004, it could not have had any effect on any future charges which concerned acts committed after 9 February 2004. Moreover, the Court observes that from 1 March 2004 onwards the Enforcement Act prevented the Bailiff from using information received in such an inquiry for the purposes of bringing charges against the debtor.
50. As to the charges for aggravated debtor’s fraud, the Court notes that the applicant was convicted of aggravated debtor’s fraud for having failed, in the 2004 enforcement inquiry, to account for certain assets. These charges concerned only the fact that the applicant had failed to give full information about his assets in the 2004 enforcement inquiry. In this respect, the applicant’s case is similar to the cases of Allen v. the United Kingdom (dec.) (no. 76574/01, ECHR 2002‑VIII) and Elomaa v. Finland (dec.), no. 37670/04, 16 March 2010, where the Court found that the applicant’s subsequent conviction for the offence of making a false declaration of his assets to the tax authority was not an example of forced self-incrimination, but the result of the offence itself.
51. From the case file it does not appear that any other charges were brought against the applicant. However, the applicant claims that, had he provided different information in the inquiries of 1997 and 2004, charges could have been brought against him in respect of the 1997 inquiry. The Court observes that although such a theoretical possibility existed, in reality no charges were brought against the applicant. This complaint is thus hypothetical. Moreover, the right not to incriminate oneself presupposes that there is already a pending criminal case or such a case is anticipated. That right seeks to guarantee that such a case against the accused is argued without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. As there is no indication of any charges against the applicant in respect of the 1997 inquiry, there cannot be any issue of self-incrimination at stake.
52. Consequently, the Court finds that the applicant’s right not to incriminate himself under Article 6 § 1 of the Convention has not been violated. It follows that this complaint is manifestly ill-founded and must therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 January 2016.
André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy