FOURTH SECTION
DECISION
Application no. 10391/06
by Jarmo Johannes NEVALA
against Finland
The European Court of Human Rights (Fourth Section), sitting on 20 January 2009 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 February 2006,
Having regard to the 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 Jarmo Johannes Nevala, is a Finnish national who was born in 1954 and lives in Tampere. He was represented before the Court by Mr J. Tuutti, a lawyer practising in Tampere. 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 applicant and as they appear from the documents on the file, may be summarised as follows.
Pre-trial investigation
On 21 December 1998 a Mr O. reported an alleged offence to the National Bureau of Investigation.
On 31 March 1999 the applicant was arrested as a suspect in an aggravated fraud allegedly committed during the period between 1 January 1996 and 31 December 1997. He was suspected of, inter alia, having sold a painting to Mr O., erroneously claiming that it had been painted by Peter Paul Rubens. A Mr T. and a Ms W. were suspected of, inter alia, having sold another painting to Mr O., erroneously claiming that it had been painted by Vassili Kandinsky.
On 29 April 2000 the pre-trial investigation was completed.
Riihimäki District Court
On 27 June 2003 the public prosecutor preferred charges and on that date the case became pending before the District Court (käräjäoikeus, tingsrätten).
The court held an oral hearing during which it received testimony from 19 witnesses.
On 19 December 2003 the District Court convicted the applicant of aggravated fraud (a number of acts which constituted a single instance of aggravated fraud) committed during the period from 31 May to 9 September 1996 and sentenced him to a suspended term of seven and a half months’ imprisonment and a supplementary fine in the amount of 300 euros (EUR). It also ordered him to pay damages and legal costs.
Kouvola Court of Appeal
On 10 and 16 January 2004 the public prosecutor and the complainant respectively appealed. On 25 January 2004 the applicant appealed.
The court received the parties’ replies to the appeals.
It held an oral hearing from 8 to 11 March and from 14 to 17 March 2005. It received testimony from 15 witnesses.
On 13 May 2005 the Court of Appeal (hovioikeus, hovrätten) found the applicant guilty of aggravated fraud committed in 1996. It convicted him of more acts of fraud than did the lower court.
It noted that a significant amount of time had passed between the commission of the applicant’s offence and its judgment. The pre-trial investigation and the court proceedings had been conducted without undue delay and the applicant had, for his part, not prolonged the proceedings. However, the prosecution stage had been lengthy. Therefore, the court mitigated the applicant’s sentence pursuant to Chapter 6, section 7 (3) of the Penal Code. It sentenced him to an immediate term of one year and eight months’ imprisonment. It did not however specify the sentence the applicant would have received had the proceedings been speedier. It also ordered him to pay damages and legal costs.
Supreme Court
On 3 July 2005 the applicant requested leave to appeal and an oral hearing in the Supreme Court (korkein oikeus, högsta domstolen).
On 31 August 2005 the Supreme Court refused him leave to appeal.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention about the length of the proceedings.
2. He also complains under Article 6 that their duration prevented him from defending himself in an effective manner since the witnesses could no longer recall the relevant events and some witnesses had died.
THE LAW
A. The length of the proceedings
The applicant complained that the proceedings against him were excessively lengthy. He relied on Article 6 which 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 12 November 2008 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:
“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 a unilateral declaration – its acknowledgement that in the special circumstances of the present case the length of the criminal proceedings did not fulfil the requirement of ‘reasonable time’ referred to in Article 6 § 1 of the Convention.
2. Consequently, the Government is prepared to pay the applicant in compensation for non-pecuniary damage EUR 2,100 (two thousand one hundred euros). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus an acceptable sum as to quantum in the present case.
3. The Government are furthermore prepared to reimburse the applicant’s costs and expenses in an amount of EUR 500 (five hundred euros), inclusive of value-added tax. In its view, this amount could reasonably be considered to correspond to what has actually been incurred by the applicant and as sufficient compensation for his costs and expenses in the proceedings in the present case, and also acceptable as to quantum.
4. The total sum of EUR 2,600 (two thousand six hundred euros) 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 undertakes 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.
5. 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 present 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 the application out of its list of cases.”
In a letter of 16 December 2008 the applicant expressed the view that there was no reason to strike the case out of the 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 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 some six and a half years. The case was dealt with by three levels of jurisdiction. 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. 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 2,600 euros, constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case and to its awards in comparable length of proceedings 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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II). 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, Kangasluoma v. Finland, no. 48339/99, 20 January 2004 and Lehtonen v. Finland, no. 11704/03, 13 June 2006).
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 alleged unfairness of those proceedings
Insofar as the applicant also complained under Article 6 that the duration of the proceedings ruled out a good defence, the Court notes that he did not submit this complaint to the Supreme Court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 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 inadmissible the remainder of the application.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy