Marjatta JOKINEN and Pekka JOKINEN v Finland - 37233/07 [2009] ECHR 1380 (1 September 2009)

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The European Court of Human Rights (Fourth Section), sitting on 1 September 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, Mrs Marjatta Jokinen and Mr Pekka Jokinen, are Finnish nationals who were born in 1940 and 1942 respectively and live in Eurajoki. They were represented before the Court by Mr Harri Toimela, a lawyer practising in Pori. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 April 2003 a bailiff, a police superintendent and a police officer entered the applicants’ home after 9.30 p.m. with the intention of serving a will on the first applicant. They knocked on the door but, as nobody answered, the police opened the locked door and entered. They had found a key near the entrance. The bailiff served the will on the first applicant who apparently panicked, accidentally fell and hurt herself.

The bailiff had requested executive assistance on the basis of the Bailiffs Act (haastemieslaki, lag om stämningsmän) from the police superintendent who had granted the assistance on the basis of section 40 of the Police Act (poliisilaki, polislagen). It appears that the bailiff had been trying to serve the will on the first applicant since November 2002.

On 14 January 2005 the local public prosecutor found, as regards respect for home, that there was no indication of any crime and decided not to bring charges against the bailiff and the police officer. He found that even though the police had had no right to enter the applicants’ home, it had not been shown that either the bailiff or the police officer had intentionally violated the respect for home. Moreover, as concerned the complaint that the bailiff and the police officer had failed to assist the first applicant when she fell, the public prosecutor found no indication of any crime that would have necessitated the bringing of charges.

On 17 January 2005 the local public prosecutor brought charges against the police superintendent.

On 31 January 2005 the applicants complained to the Office of the Prosecutor General (Valtakunnansyyttäjänvirasto, Riksåklagarämbetet) about the local public prosecutor’s decisions not to bring charges against the bailiff and the police officer. They claimed that the local public prosecutor had exceeded his authority and that the decisions not to bring charges were not correct.

On 17 March 2005 the Deputy Prosecutor General, as regards the respect for home, ordered the local public prosecutor to bring charges also against the bailiff and the police officer. As to the alleged failure to assist the first applicant, he upheld the decisions not to bring charges which thus became final. Moreover, he found that the local public prosecutor had not exceeded his authority.

On 23 March 2005 the local public prosecutor brought charges against the bailiff and the police officer. On 5 April 2005 the first applicant brought a private prosecution against the bailiff and the police officer for failure to assist her, together with an action for damages. All charges, the private prosecution and the action for damages, were joined and dealt with in the same criminal proceedings.

On 11 October 2005, after having held an oral hearing, the Rauma District Court (käräjäoikeus, tingsrätten) dismissed all charges as well as the action for damages. The first applicant was ordered to pay the costs and expenses of the bailiff and the police officer as far as the private prosecution was concerned. The District Court found, inter alia, that the bailiff, the police superintendent and the police officer had not intentionally violated the respect for home. It was not very clear, on the basis of national law, whether executive assistance could be granted for serving a will. In any event, their offence could be regarded as minor, considering the circumstances. As for the failure to assist the first applicant, the court found that her life and health had not been in serious danger.

On 10 November 2005 the applicants appealed to the Turku Appeal Court (hovioikeus, hovrätten) claiming, inter alia, that the authorities had intentionally violated the respect for home. This right was guaranteed by the Constitution and the derogations from it were enumerated in the Police Act and in the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen). Serving a will was not included in either of them. The authorities should have known that the act they had committed was illegal.

On 13 October 2006 the Turku Appeal Court upheld the judgment of the District Court. It found that the three civil servants had violated the respect for home and that there was no national provision that would have justified their entry into the applicants’ home. However, as they had not been aware of the illegality of their actions, there had not been any intent. As to negligence, only the police superintendent was found to have been negligent but his offence could be regarded as minor.

On 11 December 2006 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal relied on before the Appeal Court.

According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act No. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act.

Under Chapter 24, Article 1, of the Penal Code (rikoslaki, strafflagen, Act No. 531/2000) the invasion of domestic premises is a criminal offence.

Sections 3 and 5 of the Bailiffs Act (haastemieslaki, lag om stämningsmän, Act No. 505/1986) provide that the bailiff has a duty to serve, inter alia, official documents and that he has a right to receive, if needed, executive assistance from the police in order to comply with his duties.

The situations where the police are allowed legally to invade domestic premises are enumerated in the Police Act (poliisilaki, polislagen, Act No. 493/1995) and in the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act No. 450/1987). The police can enter somebody’s home and use force, for example, in order to conduct a search and apprehend a person in a criminal case, in order to help a person whose life is in danger or in other serious life-threatening situations, or in order to prevent extensive personal injuries or material damage from taking place. There is no national law provision that would allow the police to invade domestic premises for serving a will or any other private law document.

The applicants complained under Article 8 of the Convention that their right to respect for their home had been violated when the authorities, the bailiff and two police officers, had broken into their home. They claimed that, according to the national law, such coercive measures could not be used when serving a will which was a private law document.

The applicants also complained under Articles 6 and 13 of the Convention that the national proceedings had been neither fair nor impartial. The national courts had not given any grounds for why they had believed the accounts of the three civil servants rather than that of the applicants. The fact that the proceedings had been conducted against civil servants had rendered them partial. Furthermore, the applicants had been treated as one person even if the second applicant had had nothing to do with the case. He had been ordered to pay the costs and expenses in the domestic proceedings and, in particular, in the proceedings that the first applicant alone had brought against the bailiff and the police officer.

“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.”

By a letter dated 17 March 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint.

“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 applicants’ right to respect for their home has not been secured as the impugned interference with the above right has not been "in accordance with law" within the meaning of Article 8 of the Convention.

2. Consequently, the Government is prepared to pay the applicants in compensation a total sum of EUR 13,650 (thirteen thousand six hundred and fifty euros). This sum includes EUR 7,900 for pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 750 for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned failure to secure the applicants’ right to respect for their home under Article 8 of the Convention, 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 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 this part of the application out of its list of cases.

In a letter of 16 April 2009 the applicants considered that the amount of compensation provided in the Government’s unilateral declaration covered only a minuscule part of their costs and expenses and of the damage suffered by them. They submitted their just satisfaction claims in detail.

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”.

“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 right to respect for home 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 notes that the Government’s declaration contains a clear acknowledgment that in the special circumstances of the present case, the applicants’ right to respect for their home had not been secured as the impugned interference with the above right had not been “in accordance with law” within the meaning of Article 8 of the Convention. The Court is satisfied that the total amount offered to the applicants by the Government in compensation for pecuniary and non-pecuniary damage as well as for the costs and expenses, that is 13,650 euros, constitutes adequate redress for the right to respect for home 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 respect for home (see, for example, Panteleyenko v. Ukraine, no. 11901/02, § 62, 29 June 2006; and Guţu v. Moldova, no. 20289/02, § 69, 7 June 2007). Furthermore, it has already had occasion to address complaints related to alleged violation of one’s right to respect for home in a case against Finland (see Petri Sallinen and Others v. Finland, no. 50882/99, § 94, 27 September 2005).

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).

The applicants also complained under Articles 6 and 13 of the Convention that the national proceedings had been neither fair nor impartial, that the national courts had not given any grounds for why they had believed the accounts of the three civil servants rather than that of the applicants, and that the fact that the proceedings had been conducted against civil servants had rendered them partial. Furthermore, both applicants had been ordered to pay the costs and expenses in the domestic proceedings even though the first applicant alone had brought proceedings against the bailiff and the police officer.

As to the assessment of the evidence, it is for the national courts to assess the relevance and strength of the evidence put before them. Article 6 § 1 of the Convention obliges courts to give reasons for their decisions but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). The national judgments were adequately reasoned. Moreover, the sole fact that the proceedings were conducted against civil servants does not in itself render them partial. There is no indication of any violation in this respect.

As to the costs and expenses, both applicants were complainants in the proceedings brought by the public prosecutor. As the charges were dismissed, the costs and expenses were borne by the State. The first applicant was ordered to pay the costs and expenses of the civil servants against whom she had brought a private prosecution and lost. The second applicant was thus not ordered to pay any costs and expenses in the District Court. Both applicants appealed and the District Court’s judgment was upheld by the Appeal Court. As for the costs and expenses at the Appeal Court, the bailiff had directed his costs and expenses claims towards both the State and the applicants jointly. As the bailiff won his case, his costs and expenses were partly borne by the State, partly paid jointly by the applicants. The second applicant’s share of the costs and expenses was set lower than the first applicant’s in order to reflect the fact that the second applicant was not a party to the private prosecution. Had this adjustment not been made, the second applicant would in fact have been ordered to pay for proceedings to which he was not a party. There is thus no indication of any violation in this respect.

In conclusion, it follows that these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Takes note of the terms of the respondent Government’s declaration in respect of the right to respect for home complaint under Article 8 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;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Marjatta JOKINEN and Pekka JOKINEN v Finland - 37233/07 [2009] ECHR 1380 (1 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1380.html Cite as: [2009] ECHR 1380