FOURTH SECTION
DECISION
Application no. 59555/08
by Ari LEHTONEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 December 2008,
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 Ari Lehtonen, is a Finnish national who was born in 1957 and lives in Muurla. 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.
The applicant was employed by a bank, and worked in the relevant years on the bank’s new campaign to grant loans and to invest in property abroad. On 23 June 1992 the police were informed of the applicant’s suspected offences in respect of credit decisions made without adequate guarantee arrangements, which led to the bank’s winding-up at the beginning of the 1990s.
The criminal investigation was begun by the police on 7 July 1992. On 7 August 1992 the police carried out a search at the applicant’s home and seized his assets, at which point he became aware that he was suspected of serious fraud in connection with his activities at the bank. The criminal proceedings against him started in Salo District Court (käräjäoikeus, tingsrätten) on 7 March 1995 and the court gave its judgment on 24 March 2000, convicting him of four counts of aggravated fraud and sentencing him to a suspended term of one year and ten months’ imprisonment and a fine. On 4 March 2002 the Turku Appeal Court (hovioikeus, hovrätten) added a fifth count of serious fraud and increased the applicant’s sentence to four years and six months’ unconditional imprisonment and stripped him of his military rank. On 30 October 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. The applicant submitted an extraordinary appeal against the decisions of the Supreme Court and the Turku Appeal Court, but it was rejected by the Supreme Court on 17 February 2003.
On 30 March 2003 the applicant lodged an application with the Court against Finland (no. 11704/03), complaining, inter alia, about the length of these proceedings and the lack of an effective remedy in this respect. On 13 June 2006 the Court found violations of Articles 6 § 1 and 13 of the Convention and awarded the applicant five thousand euros in respect of non-pecuniary damage (see Lehtonen v. Finland, no. 11704/03, 13 June 2006).
During the pre-trial investigation, on 30 December 1993, the successor company of the bank instituted compensation proceedings against the applicant before the Salo District Court. On 21 June 1995 the District Court decided to adjourn all compensation proceedings in the case pending the conclusion of the criminal proceedings. On 24 March 2000 the District Court decided to sever the compensation proceedings from the criminal proceedings in order not to delay the latter.
The compensation proceedings were continued in April 2000. The applicant lodged several procedural claims with the District Court, requesting, inter alia, that the compensation complaints be dismissed as the proceedings had lasted an unreasonably long time. On 20 April 2001 the District Court gave an interlocutory judgment in which it found - referring to the European Court’s case-law - that the proceedings had not lasted an unreasonably long time. No separate appeal lay against this judgment.
The applicant and several other parties lodged various procedural claims with the District Court, requesting, inter alia, the dismissal of the proceedings on the basis of their unreasonably long duration. The District Court held an oral hearing in January 2004 concerning these claims.
On 9 March 2004 the District Court gave a separate decision on the complaints relating to the allegedly excessive length of the compensation proceedings. The court found that the proceedings had lasted an exceptionally long time and that they were expected to last several more years before a final judgment was given. The excessive length was due to the fact that the case was complicated and the case file exceptionally voluminous. The court noted that the compensation proceedings had been adjourned pending the conclusion of the criminal proceedings and that an oral hearing had not yet been held in the compensation proceedings as the preparatory phase had still not been completed. While accepting that the proceedings had been exceptionally lengthy the District Court, however, rejected the applicant’s claims as the domestic legislation did not provide for an option to close civil proceedings due to their excessive length. It was also found to be in the plaintiff’s interest to continue the trial.
The applicant appealed to the Turku Appeal Court, reiterating his claim that the compensation complaint should be dismissed due to the excessive length of the proceedings.
On 29 November 2004 the Appeal Court, without holding an oral hearing, upheld the District Court’s decision. It stressed that even though the length of the proceedings had already been excessive, the plaintiff had a right to continue the proceedings until the final judgment had been delivered.
The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal relied on in the Appeal Court proceedings. On 12 April 2005 the Supreme Court refused leave to appeal.
The District Court held an oral hearing in the compensation proceedings on several dates between 22 November 2004 and 15 August 2005. On 12 May 2006 it issued its judgment in the compensation proceedings, ordering the defendants, including the applicant, to pay substantial compensation to the plaintiff. The court found, referring to its decision of 9 March 2004, that the compensation complaint could not be dismissed solely on the basis of the excessive length of the proceedings and that there were no means to compensate the applicant for this.
By letter dated 31 August 2006 the applicant appealed to the Appeal Court claiming, inter alia, that the District Court proceedings had lasted an unreasonably long time, and that the proceedings had not been fair and impartial.
On 12 February 2008, after an oral hearing, the Appeal Court upheld the District Court’s interlocutory judgment of 20 April 2001 and the judgment of 12 May 2006. The court found that the compensation amount could not be adjusted solely on the basis of the excessive length of the proceedings.
By letter dated 12 April 2008 the applicant appealed to the Supreme Court, reiterating the grounds for appeal relied on before the Appeal Court. Furthermore, he lodged an extraordinary appeal requesting that the judgment of 4 March 2002 of the Turku Appeal Court be quashed on the basis of the European Court’s judgment of 13 June 2006.
On 24 June 2008 the Supreme Court refused leave to appeal and rejected his extraordinary appeal.
COMPLAINTS
1. The applicant complained under Articles 6 § 1 and 13 of the Convention that the total length of the compensation proceedings in his case had been incompatible with the “reasonable time” requirement and that there had been no effective remedy in this respect.
2. He complained under the same Articles that he had not had access to a court nor a fair trial due to the fact that there had been no effective remedy to complain about the decision of 24 March 2000 to sever the compensation proceedings from the criminal proceedings. He claimed that the decision to sever the proceedings had also violated the presumption of innocence under Article 6 § 2 of the Convention.
3. The applicant complained under Article 6 § 1 of the Convention that the judges in the Finnish legal system in general, and the District Court judge in his case in particular, had been biased and therefore he had not been judged by an independent and impartial tribunal.
4. Finally, he complained under the same Article that there had been no equality of arms as he had been denied the right to refer to certain evidence during the Appeal Court proceedings.
THE LAW
A. Length of the proceedings and effective remedy
The applicant complained about the length of the compensation proceedings and the lack of an effective remedy in that respect. He relied on Articles 6 § 1 and 13 of the Convention which provide, inter alia, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
“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 24 June 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issues raised by this complaint.
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, in the special circumstances of the present case, to express by way of a unilateral declaration its acknowledgement that the length of the compensation proceedings has failed to fulfil the requirement of ”reasonable” referred to in Article 6 § 1 of the Convention and that there has not been available to the applicant such an effective remedy as set out in Article 13.
2. Consequently, the Government are prepared to pay the applicant in compensation EUR 1,700 (one thousand and seven hundred euros). The sum covers any non-pecuniary damage, as well as costs and expenses (inclusive of VAT). In the Government’s view, the above amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings and the lack of an effective remedy in that connection, and thus an acceptable sum as to quantum in the present case.
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 the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from 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 this part 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 the list of cases.”
In a letter of 25 July 2009 the applicant considered that the compensation indicated by the Government in its unilateral declaration was not sufficient.
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 compensation proceedings lasted almost fourteen years and six months at three levels of jurisdiction. However, a part of this length overlapped with the criminal proceedings which ended on 30 October 2002 and for which the Court has found violations of Articles 6 § 1 and 13 of the Convention and awarded five thousand euros in respect of non-pecuniary damage. The Court 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 and that there has not been available an effective remedy as required by Article 13 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 1,700 euros, constitutes adequate redress for the excessive length of the proceedings and the lack of an effective remedy 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.
B. Remainder of the application
The applicant also complained under Articles 6 § 1 and 13 of the Convention that he had not had access to a court nor a fair trial due to the fact that there had been no effective remedy to complain about the decision of 24 March 2000 to sever the compensation proceedings from the criminal proceedings, and that the decision to sever the proceedings had also violated the presumption of innocence under Article 6 § 2 of the Convention. He further complained under Article 6 § 1 of the Convention that the judges in the Finnish legal system in general, and the District Court judge in his case in particular, had been biased and that there had been no equality of arms as he had been denied the right to refer to certain evidence during the Appeal Court proceedings.
The Court notes that some of these complaints have already been declared inadmissible by the Court in its judgment of 13 June 2006. It follows that these complaints must be rejected as being substantially the same as a matter that has already been examined by the Court, within the meaning of Article 35 §§ 2 and 4 of the Convention.
As regards the rest of the applicant’s complaints, the Court finds, having regard to the case file, that the matters complained of do not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected 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 complaints under Articles 6 § 1 and 13 of the Convention and 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 the remainder of the application inadmissible.
Fatoş AracıNicolas BratzaDeputy Registrar President
Full & Egal Universal Law Academy