T.K. and S.E. v. FINLAND

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38581/97
by T.K. and S.E.
against Finland

The European Court of Human Rights (Fourth Section), sitting on 16 March 2004 as a Chamber composed of:

SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 2 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms T.K. and Mr S.E., are Finnish nationals who were born in 1963 and 1951, respectively, and live in Espoo. Ms T.K. is not represented before the Court. Mr S.E. is represented before the Court by Mr M. Fredman, a lawyer practising in Helsinki. The Government are represented by their Agent, Mr A. Kosonen, Director in 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.

The applicants were shareholders in limited liability companies called X and Y. It appears that at least S.E. was also in a managing position in those companies. Both companies went into liquidation in 1991 and were dissolved in 1992.

1.  The proceedings concerning the alleged dishonesty as a debtor etc.

(a)  The investigation

W., a lawyer working for the bank which was the main creditor of the companies, was appointed as the official receiver to control the assets of the wound-up companies. After having received special auditor's reports about the companies W., on 21 October 1992, requested the police to investigate whether offences had been committed in the companies prior to the companies were wound up. The police interview of the official receiver began on 9 December 1992 and continued on 19 and 20 January 1993.

S.E. was questioned by the police for the first time on 25 May 1993. That day he was also arrested. A large number of documents were seized from both the applicants in connection with the investigations on that same day. T.K. was questioned by the police on 27 May 1993.

On 12 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) revoked the seizure of the documents, as requested by S.E., as the legal time-limit of four months had passed since they had been seized and no charges had been brought against the applicants during that time. The decision became a precedent (KKO 1994:83).

It appears that there was some disagreement between the applicants' lawyers and police officer L., in charge of the investigations in the present case, when the applicants requested that the seized documents be returned to them as ordered by the Supreme Court. S.E. complained about L. to his superiors at the Central Criminal Police (keskusrikospoliisi, centralkriminalpolisen). On 7 April 1995 the Chief Inspector ordered L. to resign from being in charge in the applicants' case. L., however, remained as an inspector in the case. Several further complaints by S.E. were rejected by the Deputy Director of the Central Criminal Police on 17 August 1995 as it was found that, due to the workload of the police, there was no reason to transfer L. from investigating this complex and voluminous case which he was already very familiar with.

The applicants were interrogated several times in the course of the investigations during the period from May 1993 until 1995. It appears that the police investigations concerning the two companies came to an end in November 1993 and April or May 1995, respectively.

(b)  The first examination of the case

The applicants were charged with offences as dishonest debtors. A writ of summons was served upon S.E. on 1 November 1994 and before the District Court on 11 May 1995 and upon T.K. on 8 May 1995. Three oral hearings were held before the District Court of Espoo (käräjäoikeus, tingsrätten), on 16 February 1995, 11 May 1995 and 29 June 1995. S.E. was absent from the first hearing due to a lawful impediment. At the second hearing the complainants requested a deferral which was granted.

On 29 June 1995 the District Court decided not to examine the charges against the applicants due to the fact that the complainants, i.e. the meeting of the debtors, had not requested that charges be brought against the applicants. The mere fact that the official receiver had made a request to that effect was not sufficient, as the practice in force at the time of the alleged offences required that the decision be made by the meeting of the debtors. The District Court noted however, that chapter 39, section 9 (3) of the Penal Code (rikoslaki, strafflagen), which had entered into force after the alleged offences were committed, allowed for the request to bring charges to be made by the official receiver alone. The District Court pointed out, that although the provision was of a procedural nature and as such normally would have been applicable when deciding cases concerning offences committed prior to its entry into force, applying the provision in this case would lead to an unfavourable outcome for the defendants. Thus, the District Court decided not to apply the provision, and accordingly, not to examine the charges.

On 27 July 1995, S.E., among others, appealed against the District Court's decision to the Helsinki Court of Appeal (hovioikeus, hovrätten), arguing, inter alia, that the time-limit to bring charges against him had lapsed as the complainants' request had been belated. The District Court should have held in its decision that the public prosecutor's right to bring charges had ceased to exist.

On 28 November 1996 the Court of Appeal found that the complainants' request had not been belated and that the official receiver had been entitled to request criminal proceedings against the applicants under chapter 39, section 9 (3) of the Penal Code, as applying that provision in the instant case neither affected the period of limitation nor subjected the applicants to a stricter penal liability. The District Court's decision was annulled and the case returned to it.

The applicants appealed. Their application for leave to appeal was lodged with the Supreme Court on 27 January 1997. On 27 May 1997 the Supreme Court extended the time-limit for observations until 19 June 1997. The Supreme Court granted the applicants leave to appeal, but it rejected their appeal on 29 October 1997. The decision became a precedent (KKO 1997:171).

On 3 November 1997 the applicants lodged a request for annulment. The applicants requested on 9 December 1997 that the Supreme Court postpone the consideration of the annulment case until the European Court of Human Rights gave judgment and as the Supreme Court on 5 April 2001 had informed the applicants that the case would be decided shortly, they requested again that the application be stayed. However, on 15 November 2001 the applicants withdrew their request for an annulment.

(c)  The second examination of the case

On 11 February 1998 the District Court informed the parties that the case would be re-introduced in the District Court's case-list. It was, however, adjourned several times as there were friendly settlement negotiations going on between the applicants and the wound-up companies. The time-limit for submission of observations was extended until 31 August 1998 upon request of the public prosecutor.

On 21 October 1998 a contract was signed between the complainants and the applicants, agreeing that they had no claims – civil or criminal ‑ against each other on the basis of the events mentioned above. The Government submit that the parties reached an agreement on compensation, but the applicants contest that the agreement concerned any form of compensation.

On 14 January 1999 the public prosecutor decided to withdraw all the charges against the applicants, finding that his right to bring charges had ceased to exist as the complainants had withdrawn their claims.

However, at the oral hearing held on 8 February 1999 before the District Court S.E. insisted that he be found not guilty of the offences he had been suspected of since 1993, i.e. for six years. It was announced by T.K. that the case had been settled in so far as she was concerned. The public prosecutor noted that at least three of the witnesses had died since the police investigations had been carried out, and that he would have withdrawn the charges anyway as the proceedings had already lasted an unreasonably long time. The District Court found on the same day that S.E. had a right to have the question of guilt decided, and that the public prosecutor could not withdraw the charges if such a withdrawal was objected to. The case was adjourned until 15 March 1999 as far as S.E. was concerned. The charges against T.K. were removed from the docket and she did not appeal against the decision.

The District Court decided on 15 March 1999, having held an oral hearing, to reject one of the charges and to leave the rest unexamined. In so far as the District Court refused to examine the charges, it found that the wound-up companies had not specified their allegations clearly enough when reporting the alleged offences to the police in October 1992 or during the interrogations of W. on 19 and 20 January 1993, and that the time-limit for requesting prosecution, as stipulated by the Decree Implementing the Penal Code (rikoslain voimaanpanosta annettu asetus, förordningen om införande av strafflagen), had thus been exceeded.

Both the public prosecutor and S.E. appealed against the District Court's decision not to examine part of the charges. The case became pending before the Court of Appeal on 14 April 1999.

On 15 August 2000 the Court of Appeal found that the complainants had specified their allegations sufficiently, by 19 and 20 January 1993 at the latest, and therefore annulled the District Court's decision in so far as it had decided not to examine the charges. Instead, the Court of Appeal removed the charges from the docket as the applicants had reached a settlement with the complainants. According to chapter 39, section 2 of the Penal Code, as in force until 31 December 1990, a debtor may not be convicted if he has satisfied his creditor.

On 16 October 2000 S.E. applied to the Supreme Court for leave to appeal. The case was still pending before the Supreme Court when this Court invited the Government to submit observations. On 21 January 2002 the Supreme Court refused S.E. leave to appeal.

2.  The proceedings concerning the alleged fraud etc.

The pre-trial investigations in respect of some other alleged offences which were related to the above-mentioned companies took place during the period November 1993 - January 1995 and June 1994 - November 1995, respectively. T.K was questioned by the police in June 1995 and S.E. in April and May 1995.

On 20 April 1999 the public prosecutor decided not to bring charges against the applicants in respect of the alleged offences, including, inter alia, a count of aggravated fraud, it being alleged that S.E. had deceived an unemployment fund and the unemployment authorities into paying him various benefits during the time when he still was in a management position in relation to the above-mentioned companies. T.K. had allegedly aided and abetted S.E.

In his decision the public prosecutor established that the merits of the first set of proceedings, with which the alleged frauds in question had a close connection, were no longer open for examination and that the evidence in both sets of proceedings was the same. Referring to chapter 1, section 8 (1) of the Criminal Procedure Act he went on:

“... As the examination of the case as far as the so called main pre-trial investigation reports are concerned has been postponed and the case has subsequently been left unexamined and due to the fact that the time that has passed has already amounted to a sanction for the suspects, S.E. having been under arrest for over two days, I find it reasonable and appropriate not to prosecute in the present case. ...”

S.E. requested, on 16 June 1999, that the public prosecutor charge him before the District Court with the offences mentioned in the decision of 20 April 1999, as he wanted to have it established that he was not guilty of the offences mentioned in that decision. T.K. made no such request.

According to the Government, the public prosecutor postponed the matter in order to await the outcome of the first set of proceedings. By a letter of 30 June 2000 the public prosecutor asked S.E. whether he wanted to wait for the Court of Appeal's judgment before the charges in question were brought before the District Court. By a letter of 11 October 2000, the public prosecutor, referring to the Court of Appeal's judgment of 15 August 2000, again asked S.E. whether he still insisted on having the charges brought before the District Court. By a letter of 20 October 2000 S.E. informed the public prosecutor that he had requested leave to appeal to the Supreme Court. In his letter of 31 May 2001 the public prosecutor invited S.E. to inform him whether he still wanted to await the Supreme Court's decision before bringing the charges before the District Court. By a letter of 2 August 2001 S.E. informed the public prosecutor that he had been waiting for the proceedings to begin since he made his request of 16 June 1999 and that he had never agreed that the case should await the outcome of the proceedings pending before the higher courts. In his letters of 10 and 20 September 2001 S.E. informed the public prosecutor that he was going to request an expert opinion concerning the question of guilt, which could be important for the handling of the case.

According to S.E. he never requested that the handling of the case be postponed, either in the letters now submitted by the Government, or orally. On the contrary, it was the public prosecutor who delayed the matter by trying to persuade him, on numerous occasions, to give up the case. S.E. received the above-mentioned expert opinion on 29 October 2001 and immediately sent it to the public prosecutor, who has not, however, to this day brought the case before the District Court.

3.  The proceedings concerning the seized material

As mentioned above, a large number of documents, according to the Government 28,000 pages, were seized on 25 May 1993. After the Supreme Court had, on 12 September 1994, ordered the police to return the seized material to S.E., the applicants' lawyers received part of the seized material on 14 September 1994. As part of the material had not, however, been returned to the applicants by the beginning of the year 2000, S.E. instituted proceedings before the District Court of Helsinki on 12 January 2000, claiming that the Central Criminal Police had not returned all the seized material and that the State of Finland be ordered to pay him FIM 8,000 (EUR 1,345.50) in compensation for the lost material. Two oral hearings were held before the District Court, on 25 April 2001 and 15 May 2001. Police officer L. made a statement to the District Court on 25 April 2001, asserting that he had copied a part of the material seized during the criminal investigations and that he still had the copies in his possession.

On 29 May 2001 the District Court found in favour of S.E., confirming that part of the seized material had been lost and ordering the State to pay the applicant FIM 8,000 (EUR 1,345.50) as compensation for his pecuniary damage and FIM 44,875 (EUR 7,547.43) as compensation for his legal expenses. This judgment became final.

On 2 July 2001 S.E. complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) that police officer L. had been biased when investigating his case. He also complained that the fact that L. still retained copies of the seized documents which the Supreme Court had ordered to be returned to him violated his right to respect for his private life and his correspondence. The complaint appears to be still pending before the Parliamentary Ombudsman.

B.  Relevant domestic law

Chapter 1, section 7 (1) and (2) of the Criminal Procedure Act reads as follows:

“The public prosecutor may waive prosecution:

if a penalty more severe than a fine is not anticipated and the offence is as a whole considered of little significance in view of its detrimental effect and the degree of culpability; and

if the offence was committed by a person under 18 years of age and a penalty more severe than a fine or imprisonment for a maximum of six months is not anticipated and the offence is considered to be the result of a lack of judgment or incaution rather than heedlessness of the prohibitions and commands of the law.”

Chapter 1, section 8 reads as follows:

“Unless an important public or private interest otherwise requires, the public prosecutor may, in addition to the circumstances referred to in section 7, waive prosecution:

where the trial and the punishment are deemed unreasonable or pointless in view of the settlement reached by the offender and the injured party, the offender's actions in order to prevent or remove the effects of the offence, his or her personal circumstances, the other consequences of the offence to the offender, the welfare or health care measures undertaken or other circumstances; or

where the offence would not have a material effect on the total sentence under the provisions on joint punishment and consideration of previous punishments.”

Accordingly, the Court notes that the public prosecutor has three options: he can bring charges before the District Court, waive prosecution due to the lack of evidence, or find that the suspect has committed an offence but decide not to prosecute under certain conditions set out in the law. In the present case the public prosecutor applied chapter 1, section 8 (1) of the Act on Criminal Proceeding.

Chapter 1, section 10 (1) of the Criminal Procedure Act provides that where the public prosecutor has, by virtue of section 7 or 8, decided not to bring charges, he shall upon request by the person concerned submit the decision concerning guilt to a court of law for review.

COMPLAINTS

1.  The applicants complain, under Article 7 of the Convention, that in the first set of proceedings they were charged with certain offences in accordance with a Penal Code which had entered into force after the alleged offences had been committed. The version of the Penal Code applied was more severe for the applicants as they were only liable to be prosecuted under the more recent law. Thus, the earlier Penal Code should have been applied in their case.

2.  The applicants also complain, under Article 6 of the Convention, about the length of criminal proceedings.

3.  The applicants further complain, under Article 6 of the Convention, that they have not had a fair trial as police officer, L., who was first in charge of the investigations and later an investigator in the applicants' case, was biased.

4.  The applicants also complain, under Article 6 of the Convention, that they have not had a fair trial as the police have lost seized documents which the applicants needed in order to prove themselves not guilty.

5.  In his submission of 2 August 2001 S.E. complains, under Article 8 of the Convention, that his right to respect for his private life and, in particular, his correspondence has been violated as L. still has copies of his personal documents which the police were ordered to return to him. The documents include, inter alia, his personal medical statements.

6.  In his submission of 6 September 2001, S.E. complains, under Article 6 of the Convention, that his right to a fair trial was violated in that the police refused to question a witness proposed by him during the pre-trial investigation in the second set of proceedings.

7.  In the applicants' reply of 25 February 2002 to the Government's observations S.E. appears to complain that his right of ownership to the lost documents has been violated.

8.  In their above-mentioned reply to the Government's observations, the applicants submit that the case no longer involves only the length of proceedings; they also complain that in the second set of proceedings they have been denied access to court due to the fact that no assessment of guilt can any longer be made in a court as the limitation period for the bringing of charges has expired. They also complain that, as the public prosecutor's decision not to prosecute will remain in force, Article 6 has been violated. The decision violates their right to a good reputation.

9.  Finally, in the above-mentioned reply to the Government's observations, S.E. appears to complain about the length of proceedings, as no decision has yet been taken as to an alleged tax offence of which he is suspected and as to an investigation concerning a prohibition on his engaging in business. He was questioned by the police already in May 1993. However, no decision to bring charges or to lodge an application prohibiting him from engaging in business has been taken.

The applicants do not invoke any Articles as to complaints nos. 7 and 9.

THE LAW

The applicants complain under Article 6 of the Convention about the length of the criminal proceedings and that the investigator at the pre-trial stage was biased. In addition, they claim that seized material was lost during the pre-trial investigations and allege that they were denied access to court in the second set of proceedings. They also complain that they were charged with offences in violation of Article 7. Finally, S.E. complains that Article 8 and Article 1 of Protocol No. 1 were violated in respect of the seizure.

A.  Article 6 § 1 of the Convention

The applicants complain about the length of the criminal proceedings, that the police officer conducting the pre-trial investigations lacked impartiality and that seized material, relevant to the case, was lost as a result of the seizure. They also complain that they have been denied access to court in the second set of proceedings. Article 6 § 1 of the Convention provides, in relevant part:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...''

(a)  Length of proceedings

The parties' submissions

As to the first set of proceedings (dishonesty as a debtor etc.) the Government submit that the proceedings in respect of T.K. began on 8 May 1995 when she was summoned and ended on 8 February 1999 when the case was removed from the District Court's list in respect of her. The proceedings in respect of S.E. began on 1 November 1994 when he was summoned. The Government submit that the parties had been in negotiation between 11 February and 21 October 1998, which period should not be taken into account when assessing the length of the proceedings. Moreover, the proceedings before the Supreme Court should be regarded as having begun on 15 November 2001, when the applicants withdrew their request for an annulment of the Supreme Court's decision of 29 October 1997.

As to the second set of proceedings (fraud etc.), the Government point out that the public prosecutor's decision not to prosecute of 20 April 1999 constitutes the final determination of the charges, and thus, for the purposes of Article 6, the proceedings have been discontinued. The period after the decision on non-prosecution cannot be examined under Article 6.

The Government submit that the case was somewhat complex, concerning economic crimes. The documentary material amounted to 28,000 pages. The case was assigned only to a few police officers due to the experience required. In the course of the pre-trial investigations, new issues constantly arose, leading to further questioning. A total of 21 people were questioned. The handling of the case was complicated by the fact that there were many parallel inter-related proceedings and separate consideration of the charges would not have been reasonable. Moreover, at least one legal issue was considered by the Supreme Court as a precedent. It also has to be taken into account that the Supreme Court referred the first set of proceedings back to the District Court for reconsideration.

The Government submit that the case was adjourned several times due to the applicants' own conduct and specific requests to that effect. The applicants have, for instance, explicitly asked the Supreme Court to await a decision to be made by this Court. This has in practice affected all the proceedings, although the request was only made with reference to the request for annulment of the Supreme Court's decision of 29 October 1997. Accordingly, it has not been possible to reach any other decisions relating to the same circumstances before the resolution of the first case. Thus, the proceedings relating to the request for leave to appeal pending since 16 October 2000 have been stayed because of the applicants themselves. The proceedings related to the decision on non-prosecution have also been adjourned for the time being. The Government argue that S.E. has requested that the handling of the case await an expert opinion. The public prosecutor is still waiting for S.E. to inform him of a convenient date for the hearing.

As to what was at stake for the applicants the Government point out that they have not been convicted of any offence. As the applicants have not been under a threat of punishment or liability for damages, there was no reason to carry out the proceedings more expeditiously than usual.

The applicants submit that 25 May 1993 should be considered as the time of commencement of both sets of proceedings and that neither one has yet come to an end as no court has examined the merits of the cases. They argue that Article 6 applied to both sets of proceedings as a whole. They contest the Government's view that the public prosecutor's decision to refrain from prosecution amounts to the final determination of the charges, as they were entitled to a formal ruling either acquitting or convicting them. If the public prosecutor's findings of guilt were to remain in force without a trial, Article 6 would be violated. This being so, the case must be considered as ending only when the question of guilt has been resolved. As S.E.'s acquittal will also result in her acquittal, T.K. is also awaiting the outcome of the court proceedings. They also reject the Government's view that the negotiations should affect the assessment concerning the length of proceedings, as the parties met only once to negotiate and only a few telephone calls took place. Moreover, the negotiations were initiated entirely by the public prosecutor. Nor did their request for an annulment of the Supreme Court's decision affect the length of the proceedings in any way.

The applicants submit that the case cannot be considered especially difficult. They submit that the Deputy Parliamentary Ombudsman in her decision of 28 February 1997 also took the view that the pre-trial investigations should have been speedier. The applicants contest that their request that the resolution of the annulment be deferred has de facto meant that the leave to appeal matter could not be considered. They have not in any way impeded the handling of the case.

As to what was at stake, the applicants submit that they have been forced to live in great uncertainty for an unreasonably long time. The criminal proceedings have caused S.E. prolonged unemployment and mental illness. The investigations have also been mentioned in the newspaper. Moreover, they have caused the applicants severe financial problems.

The Court's assessment

1.  Having regard to the applicants' complaint about the length of the first set of proceedings and the parties' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The complaint cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  As to the second set of proceedings, the Court notes that the public prosecutor decided not to bring charges against the applicants on 20 April 1999. They had, however, under domestic law, a right to have the charges brought before and examined by the District Court. Indeed, S.E. made a request to that effect. T.K. made no such request.

The Court considers that a distinction has to be made between, on the one hand, the proceedings prior to the public prosecutor's decision of 20 April 1999 not to bring charges and, on the other, those following S.E.'s request of 16 June 1999 that the public prosecutor charge him before the District Court. The court assumes that Article 6 applies under its “criminal head” to the first-mentioned part of the proceedings.

Criminal proceedings are said to begin with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 73).

Conversely, it is also the case that such proceedings will end with an official notification to the accused that he or she is no longer to be pursued on those charges such as would allow a conclusion that the situation of that person can no longer be considered to be substantially affected (X v. the United Kingdom, no. 8233/78, Commission decision of 3 October 1979, §§ 64 and 65, unreported). This end is generally brought about by an acquittal or a conviction (including a conviction upheld on appeal). The Court has also recognised that proceedings can end through a unilateral decision taken in favour of the accused, including when the prosecution formally decides not to prosecute and when a trial judge terminates the proceedings without a ruling. More recently, the Court has found that criminal proceedings ended when the prosecution informed the accused that it had discontinued the proceedings against him (Šleževičius v. Lithuania, no. 55479/00, § 27, 13 November 2001, unreported) and when a domestic court found that an accused was unfit to stand trial by reason of his psychiatric condition (Antoine v. the United Kingdom, (dec.) no. 62960/00, ECHR 2003-...), even though in both cases there remained a theoretical possibility that the charges against the applicant could one day be pursued.

Referring to the above-mentioned, the Court finds that the proceedings began with the seizure of 25 May 1993. As to T.K. they came to an end on 20 April 1999 when the prosecutor decided not to bring charges and as she did not object to it, it could not reasonably be said that her situation remained “substantially affected”. Thus, the proceedings against her lasted five years ten months and 26 days. As to S.E., he is still waiting for the proceedings to begin before the District Court.

The Court observes that the case concerned economic crimes and that the documentary material ran to 28,000 pages. The Court accepts the Government's argument that the case was complex.

As regards the applicants' conduct, the Court accepts the Government's argument that S.E.'s letters to the public prosecutor can be understood as a request for a postponement until the first set of criminal proceedings had come to an end. At the same time, the Court notes that the responsibility for diligence and proper administration of justice lies primarily with the authorities and they must themselves take appropriate steps to ensure that proceedings progress without undue delay.

The period between 1995, when the pre-trial investigations were brought to an end, and 20 April 1999 discloses a significant period of inactivity, as does also the period from 20 April 1999 onwards.

Turning to the public prosecutor's decision the Court notes that his reasons for the decision not to bring charges were that it was reasonable not to prosecute having regard, inter alia, to the time that had passed and to the fact that this had already amounted to a sanction for the applicants.

The question remains whether the applicants may continue to claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against them.

In this regard the Court recalls that mitigation of a sentence and discontinuance of a prosecution on the ground of excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention. In such circumstances, to duplicate the domestic process with proceedings before the Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66).

Applying these principles in the present case, the Court notes in the first place that the public prosecutor did not expressly refer to Article 6 § 1 of the Convention when he considered that the proceedings had exceeded a reasonable time. The Court notes, however, that the public prosecutor in substance admitted that the reasonable time requirement had not been fulfilled. Secondly, the Court is satisfied that the applicants were afforded adequate redress for the alleged violation. Although the public prosecutor's reasoning could have been more precise, the Court is satisfied that the length of the proceedings had a weighty impact on the decision not prosecute (see Beck v. Norway, no. 26390/95, § 28, 26 September 2001).

The Court accordingly considers that the applicants have been afforded adequate redress.

As regards the proceedings following S.E.'s request of 16 June 1999 that the public prosecutor charge him before the District Court, the Court assumes that Article 6 applies under its “civil head”, as S.E.'s civil right to a good reputation was arguably at issue.

The Court notes that in their submissions of 25 February 2002 the applicants complain that the case no longer concerns only the question of length, but also that they have been denied access to court since no assessment of guilt can be conducted in a court due to the fact that the bringing of charges is time-barred. As to T.K., the Court notes that she did not request that the charges against her be brought before the District Court. Thus, no issue arises as to whether her access to court was restricted. As to S.E., the Court accepts that this complaint has been made in compliance with the six months' rule, as the alleged denial of access can be regarded as having become final on 8 November 2001, i.e. when the statute of limitation expired (see below).

As the public prosecutor in his decision considered that S.E. was guilty of the criminal acts mentioned therein, S.E. had, as a rule, the right to have the charges examined by a tribunal on request. However, the Court notes that the right to access to court is not an absolute one as it has inherent limitations.

The Court recalls that the period of limitation on the right to bring actions reflects the importance of that justice is administered without delay which undermines its effectiveness and credibility. In criminal cases, it is also designed to avoid that a person remains too long in a state of uncertainty about his fate.

The Court observes that the most recent of the criminal acts allegedly committed by S.E. took place on 8 November 1991, which means that the time-limit for the right to bring charges expired ten years later, on 8 November 2001. Thus, the right to bring charges lapsed some two and a half year's after the public prosecutor decided not to bring charges. Considering also that the Supreme Court refused leave to appeal in the first set of proceedings only on 21 January 2002, the Court notes that there is no indication that the authorities manipulated the time-limits.

This being the case, the Court finds that there were acceptable reasons, i.e. the provision of law concerning limitation of the right to bring charges, for the restriction of access to court in the present case. This restriction can also be regarded as proportionate in view of the fact that the applicant under Finnish law had the right to bring a private prosecution for alleged neglect by the authorities.

Against this background, the Court does not find any appearance of a violation of Article 6 § 1 of the Convention in the second set of proceedings.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b)  Other complaints under Article 6 of the Convention

As to the complaints concerning partiality during the pre-trial investigations, the documents that were lost during the seizure and the effect of this on the applicants' trial and the alleged refusal by the police to question a witness proposed by S.E., the applicants have not been held guilty of any offence. Therefore, they cannot claim to be victims of the alleged violations of Article 6 of the Convention.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c)  Complaint under Article 6 of the Convention, in substance

As to the complaint concerning the length of the investigation of a tax offence and a prohibition on engaging in business, the Court notes that S.E. has failed to show that he has exhausted domestic remedies in accordance with Article 35 § 1 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B.  Article 7 of the Convention

The applicants complain, under Article 7 of the Convention that they have been charged with offences in the first set of proceedings in accordance with a Penal Code that had entered into force after the alleged offences had been committed. They argue that the law applied was more severe than the law in force at the time of the alleged offences. Article 7 of the Convention provides:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court notes that the applicants have not been found guilty of any offences.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

C.  Article 8 of the Convention

S.E. complains, under Article 8 of the Convention, that police officer L. still has copies of some of his documents, although the Supreme Court in 1994 ordered the police to return all seized material.

Article 8 provides, in relevant part:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter where it has been introduced within six months from the date of the final decision. It observes that the documents were seized in 1993 and that the seizure was revoked by the Supreme Court's decision of 12 September 1994, whereas this complaint was raised on 2 August 2001.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

D.  Article 1 of Protocol No. 1 to the Convention

S.E. complains that his property rights have been violated due to the fact that some documents were lost during the seizure.

Article 1 of Protocol No. 1 to the Convention provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Referring to the above said, the Court notes that the documents were seized in 1993 and that the seizure was revoked by the Supreme Court's decision of 12 September 1994, whereas this complaint was raised on 25 February 2002.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants' complaints concerning  the length of the first set of proceedings;

Declares the remainder of the application inadmissible.

Michael O'BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy