FOURTH SECTION
DECISION
Application no. 24405/07
by Veli-Matti Juhani LEHTINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 31 August 2010 as a Committee composed of:
David Thór Björgvinsson, President,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Registrar,
Having regard to the above application lodged on 4 June 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 Veli-Matti Juhani Lehtinen, is a Finnish national who was born in 1961 and lives in Salo. 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 18 September 1998 the applicant was initially questioned by the police as a suspect in a receiving offence in connection with several bankruptcy offences allegedly committed by another person, A. The file does not disclose when the pre-trial investigation was completed.
On 14 April 2000 the public prosecutor preferred charges against, inter alios, the applicant for two counts of aggravated receiving. That was the date when the case became pending before the Salo District Court (käräjäoikeus, tingsrätten).
Following a judgment given on 30 March 2001 in separate proceedings, A. left the country for Spain. The District Court therefore stayed the present proceedings until 20 August 2003. A. was extradited to Finland by the Spanish authorities on 11 July 2001 to serve a prison sentence imposed on him by the aforementioned judgment. According to an arrangement, he would be granted immunity from further prosecution in Finland for offences he had previously committed. Therefore, the present criminal case against A. was barred on the basis of his immunity. The Ministry of Justice applied to the Spanish authorities for permission to continue his prosecution in Finland in respect of offences other than those for which he had been extradited. On 2 December 2002 such leave was granted.
On 20 August 2003 the District Court rejected A.'s claim for continued immunity, finding that the immunity had been annulled.
Meanwhile, on 29 June 2001 the District Court gave a decision on the alleged partiality of the public prosecutor.
On 16 April 2004 the District Court refused leave to join a civil case to the criminal proceedings.
On 26 November 2004 the District Court ordered that no use in evidence could be made of certain documents in the case file. On 13 May 2005 the Turku Court of Appeal (hovioikeus, hovrätten) dismissed this complaint without considering the merits as no separate appeal could be lodged in that respect. The matter was referred back to the District Court.
On 16 December 2005 the District Court refused leave to join another civil case to the criminal proceedings.
On 1 February 2006 the District Court requested the Bankruptcy Ombudsman's (konkurssiasiamies, konkursombudsmannen) opinion on the extent of A.'s bankruptcy, that is, whether the legal effects of his bankruptcy were limited only to Finland or whether they also included all his assets around the world. On the same date the District Court asked the Bankruptcy Ombudsman also to clarify the legal nature of a company established according to Liechtenstein law. These opinions were received on 27 March 2006.
On 4 April 2006 the District Court rejected requests for third-party interventions, lodged by three limited liability companies.
On 5 April 2006 the District Court decided to hear two witnesses outside the framework of an oral hearing.
On 6 April 2006 the District Court ruled on the publicity of the proceedings.
On 18 April 2006 the District Court rejected A.'s request for an additional oral hearing to be held in order to clarify the actions of one counsel. On the same date the court rejected A.'s motion to have certain evidence declared inadmissible. It further rejected A.'s requests to have a number of foreign documents excluded as evidence.
On 12 May 2006 the District Court decided that a foreign witness could be heard in the case.
On 23 and 30 May 2006 the District Court requested judicial assistance from the Swiss authorities and the authorities of the Isle of Man and Guernsey respectively.
On 12 June 2006 the District Court decided on the competence of one of the witnesses to give evidence.
On 14 June 2006 the District Court ordered that no use as evidence could be made of certain other documents in the case file.
On 21 June 2006 the District Court separated one of the counts against one of the applicant's co-accused for examination in separate proceedings.
On 27 June 2006 the District Court rejected A.'s motion that one of the witnesses could not be questioned about certain facts.
On 30 June 2006 the District Court decided to postpone the oral hearing for a period of 45 days. On the same day it extended the time-limit for the request for judicial assistance from the authorities in the Isle of Man until 2 August 2006.
On 12 December 2006 the District Court delivered a judgment, convicting the applicant of two counts of aggravated receiving and ordering him to pay compensation in the amount of USD 1,500,000. The court held that the proceedings had been excessive in length. It noted that the standard sentence would be an immediate term of one year and eight months' imprisonment. However, owing to the lengthy proceedings, it reduced the sentence to an immediate term of one year and one month's imprisonment.
The public prosecutor, the complainant and the applicant appealed.
On 12 June and 25 September 2007 the Court of Appeal held preparatory hearings. On 12 June 2007 the Court of Appeal rejected A.'s request for the District Court's judgment to be quashed and for the matter to be referred back to the lower court. On the same date, the court agreed that certain persons could be heard as witnesses. On 12 June and 31 August 2007 the court decided to request judicial assistance from the authorities of Guernsey in order to hear a witness. An affidavit together with a DVD recording were received on 21 January 2008. On 25 September 2007 the court decided to request judicial assistance from the Liechtenstein authorities in order to hear two witnesses. Their written witness statements were received on 15 January 2008. On 25 October 2007 the court agreed that certain evidence could be used.
Once the main hearing began, the case was heard over six days in November and two days in December 2007.
On 21 January 2008 the Court of Appeal rejected A.'s request to rehear one of the witnesses who had given a statement before the Liechtenstein authorities. On 28 January 2008 it annulled the decision of the District Court declaring the case file secret. None of the documents in the file was declared secret but the court defined those documents that were secret ex lege.
On 25 June 2008 the Court of Appeal gave judgment, acquitting the applicant and freeing him of all liability for damage.
The public prosecutor appealed to the Supreme Court (korkein oikeus, högsta domstolen).
On 2 November 2009 the Supreme Court refused the public prosecutor leave to appeal.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.
2. He also complained under Article 13 of the Convention about the lack of an effective remedy in that connection.
THE LAW
The applicant complained about the length of the criminal proceedings and the lack of an effective remedy in that connection. He relied on Article 6 § 1 of the Convention which, inter alia, provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
By a letter dated 4 January 2010 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issues raised by this case.
The declaration provided as follows:
“1. 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 an unilateral declaration – its acknowledgement, in the special circumstances of the present case, that the length of the criminal proceedings has failed to fulfil the requirement of ”reasonable” within the meaning of Article 6 § 1 of the Convention and that to that effect there has not been such an effective remedy available to the applicant as set out in Article 13 of the Convention.
2. Consequently, the Government is prepared to pay the applicant in compensation a total sum of EUR 10,213 (ten thousand two hundred and thirteen euros). The sum includes EUR 9,738 (nine thousand seven hundred and thirty-eight euros) in compensation for non-pecuniary damage as well as EUR 475 (four hundred and seventy five euros) for costs and expenses (inclusive of VAT). In the Government's view, having regard to all the circumstances of the case and to the Court's awards in comparable length of proceedings and effective remedy cases, the above total amount would constitute adequate redress for the excessive length of the criminal proceedings and the lack of an effective remedy in that connection.
3. 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.
4. In the light of above, the Government would suggest that the circumstances of the present case allow the Court to reach the conclusion that there exists 'any other reason', as referred to in Article 37 § 1 (c) of the Convention, justifying the 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 the Court to strike the application out of its list of cases.”
The applicant maintained that the case should not be struck out of the list of cases. The right to a fair trial within a reasonable time was a common problem in Finland which would not be solved if all applications would be struck out of the Court's list of cases.
The Court notes 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 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)), and K.K. v. Finland ((striking out), no. 7779/04, 27 November 2007).
The Court observes that the criminal proceedings lasted over eleven years and one month at three levels of jurisdiction. It notes that the Government's declaration contains a clear acknowledgment 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 10,213 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded in other similar cases.
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; Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007; and Rafael Ahlskog v. Finland, no. 23667/06, §§ 18-24, 13 November 2008).
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.
For these reasons, the Court
Takes note of the terms of the respondent Government's declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides unanimously to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıDavid Thór Björgvinsson
Deputy RegistrarPresident
Full & Egal Universal Law Academy