FOURTH SECTION
DECISION
Application no. 11459/07
by Björn LANDGREN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 17 November 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 13 March 2007,
Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Björn Landgren, is a Finnish national who was born in 1956 and lives in Espoo. He was represented before the Court by Mr Ulf Månsson and Mr Jussi Sarvikivi, lawyers practising in Helsinki. 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
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 September 1996 the applicant was detained by the police on suspicion of having embezzled money from a bank, his employer. He was released on the following day after questioning. He was further questioned, and other measures were taken, between that time and 29 December 1998, when the pre-trial investigation apparently was closed. The applicant submitted his final statement to the investigation report on 15 February 1999. On 29 October 1999 the public prosecutor asked for a supplementary investigation noting, inter alia, that the applicant had requested access to documents in the bank’s possession. In its statement of 24 January 2000 the bank considered this unnecessary. On 7 June 2000 the second part of the pre-trial investigation was closed. The applicant submitted his final statement to that part on 30 June 2000.
On 31 October 2000 the prosecutor brought a charge against the applicant in the Helsinki District Court (käräjäoikeus, tingsrätten), accusing him of aggravated fraud committed between December 1991 and August 1996. According to the indictment, the applicant had been in charge of acquiring automatic data processing equipment and services for the bank. In that context he had produced false bills and misled the bank’s accounts department into paying them. The bank had either not received deliveries corresponding to those bills or they concerned the performance of a task which was included in the applicant’s job description. The money had gone to bank accounts opened and controlled by the applicant. Under the first point of the charge, the prosecutor asserted that the applicant had invoiced the bank using the names of five different companies, receiving a total sum of 3,443,409.60 Finnish marks (FIM). Under the second point of the charge, the applicant had allegedly agreed with three other firms, so-called “M‑companies”, that they would send the bank false bills. After the applicant had approved the bills for the bank, his own company F. had invoiced the M-companies, which had retained a commission. The total sum paid by the bank in this connection was FIM 2,054,387.50.
On 27 April 2001 the applicant submitted a written response to the charge. He contested it, maintaining that he was unable to respond to it in detail as it was not precise enough. To this end, he asked that the indictment be specified. He also renewed his request for access to certain documents in the bank’s possession, as they were relevant for his defence.
On 11 June 2001 the prosecutor initiated another supplementary investigation. On the same date the court held its first preparatory hearing.
On 13 July 2001 the court issued a decision ordering the bank to disclose a number of documents requested by the applicant. As the indictment was yet to be specified, and some of the documents requested were covered by business secrecy, the court did not deem it necessary to order the disclosure of all the material requested at that point.
On 14 August 2001 the prosecutor submitted the specified indictment. She contended that the bank had not received any of the alleged deliveries and the invoicing had therefore been groundless. As to the deliveries mentioned under the second point of the charge, the prosecutor made a secondary claim asserting that, even if the bank had received some products or services, the applicant had not been entitled to a separate payment. He had been on the bank’s regular payroll and had not been granted permission to hold a secondary position.
The second supplementary pre-trial investigation was completed on 31 August 2001.
On 5 October 2001 the applicant submitted his response to the specified indictment, maintaining that it was still imprecise and that the secondary charge was in contradiction with the primary one. He also argued that the disclosure order had not been followed in full.
The District Court held three preparatory hearings between June 2001 and January 2002. An oral hearing was held between 26 February and 19 March 2002. A number of witnesses were heard and the court was presented with extensive written evidence.
The bank joined the prosecutor’s charge. The applicant contested the charge, explaining that the bank had received all the invoiced deliveries. He had used false names on the bills mentioned in the first point of the charge in order to conceal the fact that the actual supplier had been his own company F. As the applicant had felt that his conduct had been morally wrong, he had agreed with the bank to reimburse the money received. As to the second point of the charge, he maintained that the bills sent by the M‑companies were genuine.
On 4 June 2002 the court dismissed the charge, stating that the bank had received software at least to the value of the invoices. As the bank had not suffered any financial loss, the applicant could not be convicted of fraud. The court also took the view that the applicant owned the copyright for at least some of the software, regardless of where he had created it. It further found that the applicant could not be held responsible for the possibly groundless invoicing of the M-companies. In granting the applicant reimbursement of his costs and expenses, the court specifically took into account the complexity of the case.
The prosecutor and the bank appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). At this point the bank made a secondary claim in respect of the first point of the charge, asserting that the applicant was guilty of aggravated forgery. The applicant was invited to submit a written response to the appeals, which he did on 15 October 2002.
A preliminary oral hearing was held on 31 May 2005 and the main hearing between 24 October and 3 November 2005. According to witness testimonies, the bank had received several software programmes, but it had not been able to use them for lack of appropriate documentation.
On 1 February 2006 the court issued its judgment. It convicted the applicant of aggravated fraud and sentenced him to two years and two months’ imprisonment. In its reasons the court stated, inter alia, that the applicant had caused the bank a financial loss of FIM 3,443,409.60 in respect of the first point of the charge and FIM 353,492 in respect of the second one. It found that the bank had not received all the programmes invoiced. The bank could not use the programmes received as they lacked proper documentation and were thus of no value to the bank. The court further found that the copyright was owned by the bank and the applicant had not been entitled to a separate payment.
As to the sentencing, the court took into account the nature of the offence as an aggravating factor and the applicant’s voluntary payment of damages, the length of the proceedings and some other circumstances as mitigating factors. It noted, however, that the length of the proceedings was partly attributable to the fact that the bank had encountered difficulties in clearing up the matter. These difficulties were, again, partly caused by the applicant.
In assessing the fee awarded to the applicant’s appointed counsel, the court noted that the case had been exceptionally demanding and specific skills had been required of the representative. The court also took into account what had been at stake for the applicant.
The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). He asked to be acquitted because there were no grounds for the conviction or, secondarily, because the proceedings had lasted too long. He invoked Article 6 § 1 of the Convention and referred to the Court’s case-law in that connection. In the event that he was not acquitted, he requested the court to remit the case to the District Court for a fresh examination. He asserted that the charge had been altered during the appellate proceedings so significantly that the Court of Appeal had, in fact, dealt with the case as a first instance in relevant parts. The assertions regarding insufficient documentation had only been made in witness testimonies given before the Court of Appeal. Even in that case the charge was to be dismissed, as the excessive length of the proceedings had undermined his possibilities to defend himself. He invoked Article 6 § 3 (a) of the Convention and Article 2 of Protocol No. 7 in that connection. In the event that the court did not comply with either request, he requested the court to reduce the sentence and order that the prison term be suspended. He noted that the Court of Appeal had not specified to what extent it had taken into account the length of the proceedings in sentencing.
On 14 September 2006 the Supreme Court refused him leave to appeal.
B. Relevant domestic law
The Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act No. 689/1997) provides that a charge shall not be altered. The prosecutor or the complainant pursuing a charge may, however, extend a charge against the same defendant to cover another act, if the court considers this appropriate. Referring to another applicable provision or to new circumstances in support of the charge is not considered to be an alteration (Chapter 5, section 17, and Chapter 7, section 23).
Chapter 6, section 10 (1) of the said Act provides that an oral hearing may be postponed if, inter alia, the court has become aware of new important evidence, which can only be received later, or the postponement is inevitable because of unforeseen circumstances or another important reason. According to the Government’s Bill (hallituksen esitys, regeringens proposition) No. 82/1995, a postponement may be necessary, inter alia, to allow the parties to submit fresh evidence when new issues have arisen in an oral hearing.
The Supreme Court is competent to examine issues of both fact and law. However, leave to appeal is required for such an examination. Leave may only be granted if it is important to bring the case before the Supreme Court for a decision with regard to the application of the law in other, similar cases or because of the uniformity of legal practice; if there is a special reason for this because a procedural or other error has been made in the case, on the basis of which the judgment is to be reversed or annulled; or if there is another important reason for granting it (Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), Act No. 104/1979, Chapter 30, sections 2(1) and 3(1)).
COMPLAINTS
The applicant complained firstly under Article 6 § 1 of the Convention that the length of the above proceedings had been excessive. He contended that the Court of Appeal had not taken that into account in a clear and measurable manner when fixing his sentence.
Secondly, he complained under Articles 6 § 1 and 6 § 3 (a) taken together that the proceedings had been unfair in that the description of the alleged offence had been unspecified and constantly altered. In particular, the assertions concerning the insufficient documentation, and its significance to the value of the software, had only been made at the oral hearing before the Court of Appeal, at which time the applicant had no longer been able to defend himself properly. He had been denied access to the bank’s premises at the pre-trial stage and obtaining fresh evidence several years after the alleged offence had been impossible.
Lastly, he invoked Article 2 of Protocol No. 7 to the Convention, maintaining that, due to the last alteration of the indictment, the Court of Appeal had, in fact, been the first instance to examine the case in relevant parts. As leave to appeal was required for full examination of the case by the Supreme Court, and as the applicant’s request to that end had been refused, he had been deprived of his right of appeal.
THE LAW
A. The complaint concerning the length of the proceedings
The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been excessively lengthy.
Article 6 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 ...”
1. The parties’ submissions
By a letter dated 25 March 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this part of the application.
The declaration provided as follows:
“Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that, in the special circumstances of the present case, the length of the proceedings have failed to fulfil the requirement of ‘reasonable’ within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government is prepared to pay the applicant in compensation a total sum of EUR 6,400 (six thousand four hundred euros). This sum includes EUR 5,500 for non-pecuniary damage and EUR 900 for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus constitute an acceptable sum as to quantum in the present case.
The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
In the light of above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike this part of the application out of its list of cases.”
In a letter of 30 April 2009 the applicant opposed the Government’s suggestion to strike the application out of the Court’s list of cases and requested that the examination of the case be continued. As to the compensation offered by the Government, the applicant considered it inadequate.
2. The Court’s assessment
The Court reiterates that both parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments and decisions in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005‑IX); Kalanyos and Others v. Romania (no. 57884/00, § 25, 26 April 2007); Viinikanoja v. Finland ((partial striking out), no. 20532/05, 6 January 2009); and Nevala v. Finland, ((partial striking out), no. 10391/06, 20 January 2009).
The Court notes that the Government’s declaration contains a clear acknowledgement that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 6,400 euros, constitutes adequate redress for the excessive length of the proceedings, having regard to all the circumstances of the case.
The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland, no. 25072/02, §§ 22-27, 31 May 2007; F. and M. v. Finland, no. 22508/02, §§ 48-53, 17 July 2007 and Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007).
Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of this part of the application, and finds no reasons which would require the further examination of this part of the case (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. The remainder of the application
The applicant also complained under Articles 6 § 1 and 6 § 3 (a) taken together that the proceedings had been unfair in that the description of the alleged offence had been unspecified and repeatedly altered. He contended, in particular, that the assertions concerning the insufficient documentation, and its significance to the value of the software, had only been made at the oral hearing before the Court of Appeal, at which time he had no longer been able to defend himself properly. He had been denied access to the bank’s premises at the pre-trial stage and obtaining fresh evidence several years after the alleged offence had been impossible.
Article 6 § 3 (a) provides that everyone charged with a criminal offence has the right to be informed promptly of the nature and cause of the accusation against him. The Court notes at the outset that the applicant had been made aware of the suspected offences already at the pre-trial stage of the proceedings. The Court further observes that prior to the trial the applicant had asked the prosecutor to specify the charge, which request had been complied with. Although still not satisfied with the formulation of the charge, the applicant had responded to it, first in writing, and later at the District Court’s oral hearing.
As to the proceedings before the Court of Appeal, it is the Court’s view that the facts of the case do not support the applicant’s allegation that the charge itself was altered but, rather, that the prosecutor and the complainant referred to new circumstances in support of the charge, namely insufficient documentation of the software and how this had affected the value thereof. In this regard, the Court refers to Chapter 5, section 17, and Chapter 7, section 23 of the Criminal Procedure Act. The Court finds that the applicant could have requested the appellate court to postpone its hearing, relying on Chapter 6, section 10 (1) of the above-mentioned Act, which would have allowed him more time to prepare for his defence in the light of the new evidence. The Court further finds that the applicant has failed to specify and substantiate his claim that it would have been impossible for him to gain more evidence on his behalf at that stage.
Having regard to the above, the Court finds no appearance of a violation of Article 6 § 1 taken together with 6 § 3 (a) of the Convention. This complaint must therefore be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
The applicant lastly complained under Article 2 of Protocol No. 7 to the Convention that, due to the last alteration of the indictment, the Court of Appeal had, in fact, been the first instance to examine the case in relevant parts. He claimed that in refusing leave to appeal the Supreme Court had deprived him of the right of appeal.
The Court reiterates that the right of appeal in criminal matters may be subject to exceptions in cases in which the person concerned has been convicted following an appeal against acquittal. Having regard to the Court’s above considerations concerning the alleged alteration of the charge against the applicant at the Court of Appeal, the Court finds that the matter falls within Article 2 § 2 of Protocol No. 7 and that, accordingly, the exception therein to the right to a review by a higher court applies.
In any case, even assuming that in the particular circumstances of the instant case, the Court of Appeal should be regarded as the tribunal of first instance for the purposes of Article 2 of Protocol No. 7, the leave to appeal proceedings in the present case may be regarded as a review within the meaning of the invoked Article (see, mutatis mutandis, Lantto v. Finland, (dec.), no. 27665/95, 12 July 1999).
The Court thus finds the applicant’s complaint under Article 2 of Protocol No. 7 manifestly ill-founded and rejects it pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention as well as of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares inadmissible the remainder of the application.
Lawrence Early Nicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy