BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF JAANTI v. FINLAND
(Application
no. 39105/05)
JUDGMENT
STRASBOURG
24
February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jaanti v. Finland,
The
European Court of Human Rights (Fourth Section), sitting 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
deliberated in private on 3 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39105/05) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Finnish national, Mr Anssi
Jaanti (“the applicant”), on 2 November 2005.
- The
Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
- On
7 February 2008 the
President of the Fourth Section
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Espoo. He is an attorney.
- The
applicant was suspected of aiding and abetting aggravated
embezzlement. He was first questioned by the police on 28 September
1998. He was subsequently questioned again in connection with two
other similar offences.
- On
14 December 2000 the public prosecutor brought charges against him
and another defendant, R, in the Helsinki District Court
(käräjäoikeus, tingsrätten). The court
held its first session on 29 November 2001. In the course of the
proceedings, the court was presented with written evidence, including
94 documents submitted by the applicant. It also received testimony
from both defendants and twelve witnesses, four of whom were called
by the applicant. The evidence included a written statement and the
oral testimony of the Bankruptcy Ombudsman. On 10 May 2002 the
court gave its judgment. It found that on 30 September 1994 the
applicant had, as a receiver of a bankrupt’s estate, unlawfully
transferred a substantial sum of money from the estate’s bank
account to the account of his own law firm. The court also found
that, on the same date, he had aided and abetted his associate R in
the commission of two similar offences. The court convicted the
applicant of aggravated embezzlement and two counts of aiding and
abetting aggravated embezzlement and sentenced him to a suspended
term of one year and four months’ imprisonment. R was found
guilty of having made unlawful money transfers on several separate
occasions between 29 April 1993 and 31 May 1996. He was
convicted of two counts of aggravated embezzlement, as well as aiding
and abetting the applicant’s aggravated embezzlement.
- The
applicant, R, and the prosecutor all appealed against the judgment to
the Helsinki Court of Appeal (hovioikeus, hovrätten). At
the applicant’s request, the court had extended by some five
weeks the time-limit for lodging his appeal. In his letter of appeal,
lodged on 16 July 2002, the applicant claimed that he had only
transferred funds to which he believed he was entitled as a retainer
and that he had, therefore, lacked criminal intent. He made similar
claims in connection with the two counts of aiding and abetting R’s
offences. He also referred, inter alia, to the written
statement of the Bankruptcy Ombudsman, in which the latter had
considered it possible that the applicant had, in fact, lacked
criminal intent in regard to the alleged embezzlement. On 15 and
17 November 2004 the Court of Appeal held an oral hearing. By
its judgment of 13 January 2005 it upheld the applicant’s
conviction but changed his sentence to one year and ten months’
unconditional imprisonment. In its reasons the court had regard,
inter alia, to the Bankruptcy Ombudsman’s testimony. The
Ombudsman had noted, inter alia, that at the time of drawing
up his written statement he had not had all the information about the
applicant’s actions in the matter or, at least, had not paid
attention to it. He had also testified that the receiver of a
bankrupt’s estate did not have a right to withdraw money from
the estate’s account without consent.
- On
4 May 2005 the Supreme Court (korkein oikeus, högsta
domstolen) refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Chapter
6, section 7, subsection 3 of the Penal Code (rikoslaki,
strafflagen; as amended by Act No. 515/2003 which took
effect on 1 January 2004) reads:
“In addition to what is provided above in section
6, grounds for mitigating the sentence that are also to be taken into
consideration are
...
(3) a considerably long period that has passed
since the commission of the offence;
if the punishment that accords with established practice
would for these reasons lead to an unreasonable or exceptionally
detrimental result.”
- In
its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court
noted that, although there were no legal provisions justifying the
dismissal of a criminal charge due to unreasonably long proceedings,
such a dismissal or declaring a case inadmissible might in some
exceptional circumstances, for example if their duration
ruled out a good defence, be the only effective remedy
satisfying the requirements of Article 13 of the Convention. That
was, however, not the case here. In considering whether there were
grounds for applying Chapter 6, section 7, subsection 3 of the Penal
Code, the Supreme Court held that it had to be decided in casu
whether the duration of the proceedings (here over 5.5 years) had
been unreasonable. It concluded that in this case there were no
grounds not to impose a sentence or to mitigate the sentence owing to
the duration of the proceedings.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION CONCERNING LENGTH OF PROCEEDINGS
- The applicant alleged a
violation of the right to trial within a “reasonable time”
and the absence of an effective remedy in that connection.
Article 6 § 1 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...”
Article 13 reads:
“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.”
- The
Government contested those arguments.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1.
Article 6 § 1 of the Convention
- The
period to be taken into consideration began on 28 September 1998,
when the applicant was first questioned by the police as a suspect,
and ended on 4 May 2005, when the Supreme Court refused leave to
appeal. It thus lasted six years, seven months and seven days for
three levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Government pointed out that the case comprised three separate
pre-trial investigations with related facts and one additional
investigation. During these investigations the police had conducted a
search and seized a large amount of material. After the pre-trial
stage, the case file comprised some 1,200 pages. That stage of the
proceedings, including the consideration of charges, took two years
and some two and a half months, which the Government considered
normal in cases concerning comprehensive business offences. The
Government contended that the case was complex and that the time
taken before the trial courts, one year and some five months for the
District Court and two and a half years for the Court of Appeal,
could therefore not be considered excessive. The proceedings before
the Supreme Court had lasted less than four months. In the
Government’s view there had been no unnecessary delays in the
proceedings on the part of the authorities. As to the conduct of the
applicant, the Government pointed out that the Court of Appeal had
extended the time-limit for lodging an appeal at his request. The
Government concluded that the proceedings had been conducted within a
reasonable time.
- The
applicant contested those arguments. He submitted that the charges
against him had only concerned three money transfers, whereas several
other money transfers made by R had not been connected to his actions
in any way. On the applicant’s part, the case had not been
complex. The material seized by the police had not concerned the
offences with which he had been charged. Also the case file had
comprised material mainly concerning R’s alleged criminal
actions. In the applicant’s view, the investigations of R and
himself, as well as the subsequent court proceedings, had been joined
unnecessarily, which had resulted in their excessive length. The five
week extension of time-limit at the appellate stage had only had a
minor effect on the total length.
- The
Court notes that, while the proceedings as such may have involved
complex issues of economic crime, the case against the applicant only
concerned three money transfers made in the course of one day.
Therefore, the total length of the proceedings cannot be justified by
the alleged complexity of the case, as far as the applicant was
concerned. Even taking into account the five-week extension requested
by the applicant for the lodging of his appeal, the proceedings
against him lasted six and a half years, which cannot be considered
reasonable in these circumstances. The Court would also note that the
Government have not afforded a satisfactory explanation for the
length of the proceedings before the Court of Appeal, which took more
than one year longer than in the District Court.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2.
Article 13 of the Convention
- As
to the Article 13 complaint the Government submitted that Chapter 6,
section 7, subsection 3 of the Penal Code constituted an effective
remedy. There had been no reason to apply that provision in this
case, however, as the length of the proceedings had been reasonable.
Thus, this part of the application was also manifestly ill-founded.
- The
applicant contested that argument.
- The
Court notes that the national courts did not acknowledge in any way
that the length of the proceedings was excessive and did not afford
any redress by reducing the applicant’s sentence in an express
and measurable manner under the provision advanced by the Government.
- The
Court further reiterates that, under Finnish law, the applicant was
at no stage of the proceedings able to request a domestic court to
expedite the conduct of the proceedings or to file a claim for
compensation either during their course or following their
termination (see, for example, Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 186, ECHR 2006 ).
- It
follows that the applicant did not have an effective remedy in the
present case. There has thus been a breach of Article 13 of the
Convention.
- The
Court would further wish to draw attention to the fact that, subject
to compliance with the requirements of the Convention, the
Contracting States are afforded some discretion as to the manner in
which they provide individuals with the relief required by Article 13
and conform to their Convention obligation under that provision. It
has also stressed the importance of the subsidiarity principle so
that individuals are not systematically forced to refer to the Court
in Strasbourg complaints that could otherwise, and in the Court’s
opinion more appropriately, have been addressed in the first place
within the national legal system (see Kudla v. Poland,
§§154-155, ECHR 2000-XI).
II. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 1 of the Convention
that the proceedings had been unfair in that, in their reasoning, the
courts had totally disregarded the written statement and the oral
testimony of the Bankruptcy Ombudsman, which evidence had been
favourable to him.
- The Court observes that, in the light of the
documents, the District Court did not refer to the said evidence in
its reasons. However, the Court of Appeal’s summary of the
Ombudsman’s testimony comprised almost a full page and
contained, inter alia, his comments on the said statement. The
Court of Appeal referred to this testimony in its conclusions,
although not in full detail. According to the Court’s case-law,
Article 6 § 1 does not, however, require a detailed answer to
every argument (see, Van de Hurk v. the Netherlands, 19 April
1994, § 61, Series A no. 288). The Court also observes that the
statement was only one of the dozens of documents which the parties
produced before the courts and that twelve witnesses were heard
altogether, four of whom were called by the applicant. The Court
reiterates that the assessment of evidence is primarily the task of
the national courts (see, for example, Doorson v. the Netherlands,
26 March 1996, § 67, Reports of Judgments and Decisions
1996 II). It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
- The
applicant further complained under Article 6 § 1 of the
Convention that the joining of the pre-trial investigation and court
proceedings concerning him and R had been, for the most part,
unnecessary and had given rise to a suspicion of the courts’
lack of objectivity. Moreover, there was reason to believe that the
joint investigation and examination of their cases had had a negative
effect on the length of the proceedings as well as the outcome in his
regard.
- The
Court reiterates that both defendants were suspected of, and charged
with, similar offences. More importantly, they were charged with
aiding and abetting at least some of their respective offences. In
the Court’s opinion, joining the cases did not amount to a
breach of Article 6 § 1 as such. The Court finds the applicant’s
other grievances in paragraph 29 unsubstantiated. The Court considers
that these complaints are also manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention. The Court would note, however, that the joint
procedure may have contributed to the overall length of the
proceedings, in respect of the applicant. As the Court has found a
violation of Article 6 § 1 of the Convention concerning the
length of the proceedings, it is not necessary to address this
question as a different complaint.
- Lastly,
the applicant complained under Article 13 of the Convention about the
lack of an effective remedy as regarded his complaints under this
heading. The Court finds that he has no arguable claim in this
respect. This part of the application is therefore also rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 7,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim considering it excessive as to
quantum. The amount of any non-pecuniary damages should not
exceed EUR 3,500.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 2,500 under
this head.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 for the costs and expenses incurred
before the Court. As he had not used any outside legal services, the
amount was to compensate his own work in pursuing the application.
- The
Government contested the claim and submitted that such claims were
not supported by the Court’s case-law.
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland, 25 August
1998, § 63, Reports 1998 VI). Furthermore, the Court
reiterates that under Article 41 of the Convention no awards are made
in respect of the time or work put into an application by the
applicant as this cannot be regarded as monetary costs actually
incurred by him or her (see, Brincat v. Italy, 26 November
1992, § 29, Series A no. 249 A, Pétur Thór
Sigurðsson v. Iceland, no. 39731/98, §§
52 and 54, ECHR 2003 IV, Lehtinen v. Finland (no. 2),
no. 41585/98, § 57, 8 June 2006). No award is thus made under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the excessive
length of the proceedings and the lack of an effective remedy in that
connection admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention concerning the length of the
proceedings;
3. Holds that there has been a violation of
Article 13 of the Convention in that connection;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,500 (two thousand five hundred euros), plus any tax
that may be chargeable,
in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza
Registrar President
