FOURTH SECTION
DECISION
Application no. 33290/11
Petri NIKKINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 28 January 2014 as a Committee composed of:
Päivi Hirvelä, President,
Vincent A. De Gaetano,
Robert Spano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 11 May 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Petri Nikkinen, is a Finnish national, who was born in 1975 and lives in Heinävesi. He was represented before the Court by Mr Markku Jakobsson, a lawyer practising in Vantaa.
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. The applicant was a suspect in a case concerning manslaughter (tappo, dråp) committed on 1 September 1993. He was questioned by the police first on 9 September 1993 and then twice more on 24 September and 8 October 1993.
5. The police continued the criminal investigation and arrested the applicant on 10 March 2003, on suspicion of having committed an offence. The applicant was arrested, and during the period when he was under arrest the police questioned him three times, namely on 10, 11 and 12 March 2003. He was released on 13 March 2003.
6. The applicant was questioned again on 18 June 2010, on suspicion of manslaughter. No evidence was received to justify referring the matter to the prosecutor for consideration of charges.
7. On the basis of the investigation by the police, it was still reasonable to suspect the applicant of complicity in manslaughter (osallisuus tappoon, medverkan till dråp). Therefore, the criminal investigation could not be terminated or interrupted but was continued.
8. On 1 September 2013 the matter became time-barred as the right to prosecute elapsed.
B. Relevant domestic law and practice
9. The Act on Compensation for Excessive Duration of Judicial Proceedings (laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen om gottgörelse för dröjsmål vid rättegång; Act no. 362/2009) entered into force on 1 January 2010. The Act provides a party with a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long.
10. As to its scope of application, section 2, subsection 1, of the Act initially provided as follows:
“This Act is applicable by general courts to litigious, non-contentious and criminal actions.”
11. On 8 June 2011 the Supreme Court found in its precedent case KKO:2011:38 that the unreasonable length of a pre-trial investigation could also entitle a person to receive compensation from the relevant authorities, irrespective of whether charges were subsequently brought or not. Although this kind of situation was not mentioned in the Act, it might cause non‑pecuniary damage similar to that caused by delays in the actual judicial proceedings. By referring to Articles 6 and 13 of the Convention and to the human rights-friendly interpretation, the Supreme Court thus found that there was no reason to treat length accumulated during a pre-trial investigation differently depending on whether charges were subsequently brought or not.
12. Even before the above precedent case, the National Police Board (Poliisihallitus, Polisstyrelsen) had already in May 2011 compensated a delay which had taken place during pre-trial investigation. Similarly, in January 2013, the Office of the Prosecutor General (Valtakunnansyyttäjänvirasto, Riksåklagarämbetet) compensated a delay which had taken place in consideration of charges. In both decisions it was stressed that if the person in question was not satisfied with the compensation, there was a possibility to take civil action before a district court.
13. The principles expressed in the Supreme Court’s precedent case KKO:2011:38 have been incorporated into the Act on Compensation for Excessive Duration of Judicial Proceedings (as amended by Act no. 81/2013 which entered into force on 1 June 2013). Section 5 of the Act now stipulates that, in a criminal case, the time starts running from the moment when a person is informed of the suspicion against him or her, or when this suspicion has effect on him or her.
COMPLAINT
14. The applicant complained under Article 6 §1 of the Convention about the excessive length of the proceedings.
THE LAW
15. The applicant complained under Article 6 §1 of the Convention about the excessive length of the proceedings.
16. Article 6 § 1 of the Convention reads in the relevant parts as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
17. The Government pointed out that the Court had found the Act on Compensation for Excessive Duration of Judicial Proceedings to be an effective remedy for excessive length of proceedings in civil and criminal matters. When awarding compensation on the basis of this Act, domestic courts also included in the length of the proceedings the length of the criminal investigation. If charges were brought against the applicant, he would be able to use that remedy during the subsequent court proceedings. Even if no charges were brought, the applicant could apply, in accordance with the Supreme Court’s precedent case KKO:2011:38, for compensation solely for the unreasonable length of pre-trial investigation. This precedent confirmed that there existed an effective remedy before the relevant authority for excessive length. In the Government’s view the applicant had not exhausted the effective domestic remedies available to him and the application should therefore be declared inadmissible.
18. The applicant claimed that the police should have ended the pre-trial investigation in March or April 1994 at the latest as no new evidence had been gathered in the matter after that time. He should not have been kept under suspicion for decades. He had only been 18 years old when he was interrogated for the first time and he was now 37. He had spent all his adult life in uncertainty. This had caused him unbearable mental suffering.
19. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
20. The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
21. The Court has already found in the context of other cases (see Ahlskog v. Finland (dec.), no. 5238/07, 9 November 2010; and S.V. v. Finland (dec.), no. 66399/09, 24 January 2012) that a complaint under the Act on Compensation for Excessive Duration of Judicial Proceedings is an effective remedy in the sense that it is capable of providing adequate redress for excessive length of proceedings in civil and criminal cases, provided that the impugned proceedings are still pending.
22. In this connection, the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). The Court has on many occasions held, in cases concerning the length of proceedings, and which had not been declared admissible by the Court, that applicants should be required to have recourse to domestic remedies notwithstanding that those remedies have been enacted after their applications have been filed with the Court (see, for example, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001‑XII; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002‑IX; Charzyński v. Poland (dec.), no. 15212/03, § 40, ECHR 2005‑V; Ahlskog v. Finland (dec.), cited above; and S.V. v. Finland (dec.), cited above).
23. The Court notes that the criminal investigation conducted by the police, in which the applicant was a suspect, was on-going in the present case between 1 September 1993 and 1 September 2013. The Act on Compensation for Excessive Duration of Judicial Proceedings entered into force on 1 January 2010, providing for a party to judicial proceedings concerning a civil or criminal matter to receive compensation from State funds whenever the proceedings have been excessively long. In June 2011 the Supreme Court, by its interpretation in the precedent case KKO:2011:38, extended this right to cover also pre-trial investigation even when the investigation did not lead to charges being brought or to judicial proceedings.
24. The Court notes that it has already found the Act on Compensation for Excessive Duration of Judicial Proceedings to be an effective remedy. Similarly, its extension by the Supreme Court’s interpretation to cover pre‑trial investigation must also be regarded as effective. The Court notes that the Government have provided several examples of the effectiveness of that remedy. They have also provided examples where, even before the Supreme Court’s precedent case, the National Police Board had compensated delays which had taken place during pre-trial investigation. Moreover, the Supreme Court’s interpretation has subsequently been incorporated in the Act itself and this amendment has been in force since 1 June 2013. Since in the applicant’s case the pre-trial investigation was still pending at that time, there were no procedural obstacles to examining the applicant’s compensation claim for excessive length by the relevant authorities.
25. Taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, the Court finds that the applicant should have applied for compensation either after 8 June 2011, on the basis of the Supreme Court’s precedent, or after 1 June 2013, on the basis of the Act on Compensation for Excessive Duration of Judicial Proceedings.
26. Accordingly, the application must be rejected for non‑exhaustion of domestic remedies and declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy