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FOURTH
SECTION
CASE OF NATUNEN v. FINLAND
(Application
no. 21022/04)
JUDGMENT
STRASBOURG
31 March
2009
FINAL
30/06/2009
This
judgment may be subject to editorial revision.
In the case of Natunen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21022/04) 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 Jari Natunen (“the
applicant”), on 9 June 2004.
- The
applicant was represented by Mr Markku Fredman, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged that the criminal proceedings against him had not
been fair in that the principle of equality of arms and the
presumption of innocence had not been respected and he had been
deprived of adequate facilities for the preparation of his defence.
- On
13 March 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Helsinki.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant was suspected of an aggravated drugs offence. On an
unspecified date the public prosecutor brought charges against him
and two other persons, L.J. and J.J. According to the indictment, the
defendants had decided to obtain a large amount of amphetamine from
Estonia. Between 28 and 29 September 2001 the applicant and J.J.
made a trip to Estonia to arrange the purchase, acting on
instructions from L.J. On 15 October 2001 the drugs, hidden in a
truck, were brought to Finland by a fourth person. During this period
the applicant kept in contact with the Estonian supplier by
telephone. On 16 October 2001 the truck driver handed over the drugs
to L.J. and J.J., who then hid them. Later in the evening J.J.
returned for the drugs, as agreed with L.J. While J.J. was driving
back to town, the police stopped and detained him and seized the
drugs from his possession. In the meantime, the applicant picked up
L.J. from a nearby petrol station.
- Subsequently,
all the defendants contested the above charge. The applicant denied
any knowledge of the matter. He maintained that his trip to Estonia
had only been for pleasure and that he had not received any
instructions from L.J. relating to it. Nor had he kept any contact
with the supplier. He further denied any knowledge of what had
happened at the petrol station on 16 October 2001. Apparently all the
defendants asserted that their collective enterprise had concerned a
plan to purchase weapons and not drugs.
- On
1 February 2002 the applicant’s counsel sent a letter to the
police inquiring whether all the telephone calls made between the
three defendants by mobile phone had been included in the pre-trial
investigation material. He also requested the police to confirm in
writing that it was not possible to disclose to the defence the
telephone metering information in the possession of the police.
- In
their response of 8 February 2002 the police stated that all the
telephone calls pertaining to the investigated offence had been
included in the pre-trial investigation material. The police further
confirmed that the telephone metering information in their possession
could not be disclosed as it was confidential.
- The
evidence obtained through telephone surveillance and produced before
the court included 21 recorded telephone conversations and 7 recorded
text messages between the defendants between 25 September and 16
October 2001, apparently all pertaining to the different stages of
the alleged drugs offence.
- On
14 February 2002 the Espoo District Court (käräjäoikeus,
tingsrätten) found that the defendants had planned to
purchase drugs and had carried out the plan together. It convicted
them as charged and sentenced each of them to six and a half years’
imprisonment. As to the conviction of L.J. and J.J. the court relied
mainly on the testimony of the truck driver and the fact that the
drugs had been found in J.J.’s possession. As to its finding
that all three defendants had acted in concert in committing the
offence, the court relied on information obtained through telephone
surveillance. According to the court, the numerous recordings of
telephone conversations between the defendants consistently showed
that there had been a common understanding about the plan to obtain
the drugs several weeks before they were delivered. Their
co-operation had begun on 28 September 2001, at the latest, when
the applicant had made a trip to Estonia with J.J. Since that journey
they had been showing concern about the delay in the delivery. The
court found the defendants’ account of the plan to purchase
weapons unsubstantiated. The court also relied on the recordings in
concluding that the applicant had participated in the actual
receiving of the drugs just as actively as the other defendants, even
though he had not been there to receive them in person.
- The
applicant, along with the other parties, appealed against the
judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten).
In his letter of appeal he claimed that all that had been established
beyond dispute was that he had made a trip to Estonia and that he had
been in contact with the other defendants by telephone, but that did
not connect him to the offence of which he had been convicted. The
District Court had failed to specify which telephone conversations
proved that he had been an accomplice.
- In
his subsequent additional submission to the court the applicant also
requested that the public prosecutor be ordered to produce all the
recordings of the telephone conversations between the applicant and
other defendants, as they would reveal that the dealings involving
the defendants had related to matters other than drugs. The applicant
contended that only a fraction of all these telephone conversations
had been included in the pre-trial investigation material, thus
giving a misleading impression of the nature of their association. If
the court were to refuse this request, the defence should at least be
granted access to all of the recordings.
- The
court requested the prosecutor to submit a reply regarding, inter
alia, the above request. In his reply of 12 June 2002 the
prosecutor stated that it was not disputed that the applicant had
been in contact with J.L. and J.J. by telephone also concerning
matters other than the purchase of drugs. These conversations had
not, however, been included in the case material and had been
destroyed, as was required under chapter 5a, section 13 of the
Coercive Measures Act (pakkokeinolaki, tvångmedelslag,
Act no. 450/1987). Nor did the conversations in question, according
to the prosecutor, relate to any other offence which would have
allowed the police to keep the recordings without breaching the law.
All the conversations that pertained to the matter had been retained,
included in the case file and produced to the court.
- Having
regard to the prosecutor’s reply, the Court of Appeal did not
render a decision on the applicant’s request. On 13 December
2002, following an oral hearing, the court upheld the applicant’s
conviction. It increased his prison sentence to seven years.
- In
its reasons the court stated, inter alia, that, apart from the
testimonies given by the defendants, there was no evidence to support
the allegations about purchasing weapons. Furthermore, the court
found the defendants’ testimonies regarding those allegations
not credible. It also found inconsistencies between the applicant’s
testimony and some of the telephone conversations, which had been
played back to the court.
- The
applicant sought leave to appeal to the Supreme Court (korkein
oikeus, högsta domstolen) maintaining that his conviction
had been based mainly, and in practice, on the courts’ false
interpretation of those telephone conversations which had been
included in the case file. The defence had never been given access to
a large number of recordings which had not been included therein,
although a request to that end had been made during the pre-trial
investigation. He submitted as evidence the response given by the
police on 8 February 2002. As the recordings were subsequently
destroyed, the applicant had been denied the right to assess their
relevance for his defence. The applicant renewed his contention that
the recordings which had not been included in the case file would
have shown that he had been involved with the co-defendants in a
transaction not related to the purchase of drugs.
- On
19 December 2003 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW
- Chapter
5a, section 2 of the Coercive Measures Act, as in force at the
relevant time, provided that an authority investigating a crime could
be granted permission to intercept and record telephone calls made by
a suspect using an extension in his possession or another extension
presumably used by him, or calls received by a suspect through such
an extension, if the information thus obtainable could be assumed to
be of vital importance for solving a crime. This permission could
only be granted for serious offences listed in the provision,
including aggravated drugs offences. Weapons offences were not
included in the list.
- Chapter
5a, sections 12 and 13 of the said Act provided that the head of the
investigation or another official by his order was to check the
recordings at the earliest convenience and that recordings containing
information which was not related to the offence covered by the
authorisation had to be destroyed after they had been checked.
Section 13 allowed, however, the retention of recordings pertaining
to such [other] offences where the interception of telecommunications
could be permitted. Recordings which were not to be destroyed were to
be retained for five years after the case had been resolved with
legally binding effect or removed from the docket.
- Chapter
5a, section 13 of the Coercive Measures Act was amended by Act no.
646/2003, which came into force on 1 January 2004. The current
provision states that superfluous information obtained through
interception of telecommunications but not related to the offence or
pertaining to an offence other than the one covered by the
authorisation, is to be destroyed after the case has been resolved
with legally binding effect or removed from the docket. The
Government Bill (hallituksen esitys, regeringens proposition,
no. 52/2002) concerning the amendment stated that, according to the
provision in force at the time, superfluous information was to be
destroyed as soon as it had been checked. Information supporting the
innocence of the suspect could thus also be destroyed as superfluous
information. The provision was thus proposed for amendment in order
to ensure that all the material would be available for the
[subsequent] proceedings, where necessary.
- Section
1 of the Act on Public Prosecutors (laki yleisistä
syyttäjistä, lag om allmänna åklagare, Act
no. 199/1997) provides, inter alia, that it is the duty of a
prosecutor to see to the realisation of criminal liability in the
consideration of a criminal case, the assessment of the charge and
the trial in a manner consistent with the public interest and the
legal safeguards of the parties.
- The
same principle applies to the conduct of the police, which has the
duty, under section 7 (1) of the Criminal Investigations Act
(esitutkintalaki, förundersökningslag, Act no.
449/1987) to investigate and take into consideration the facts both
for and against the suspect.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b)
OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (b) of the
Convention that the proceedings had been unfair. The destruction of a
major part of the recordings by the police had not been in conformity
with the principle of equality of arms and had deprived him of the
right to have adequate facilities for the preparation of his defence.
Article
6 of the Convention reads, in relevant parts, as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...”
- The
Government contested those arguments.
A. Admissibility
- The Court notes that those 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.
Submissions of the parties
- The
applicant argued that the proceedings had been unfair in that the
police alone had had discretion to determine which recordings were to
be included in the case file and made available to the prosecutor,
the defence and the courts. As a major part of the recordings had
been destroyed, the courts had not been able to assess fully his
contention in respect of those recordings revealing the true nature
of his actions. Thus, the principle of equality of arms had not been
respected. The applicant also argued that he had not had adequate
facilities for the preparation of his defence as the police had
destroyed the evidence before the charges had been brought.
- To
complement the facts of the case, the applicant submitted copies of
his inquiry sent to the police (see paragraph 9 above) and the letter
of response thereto (see paragraph 10 above).
- The
Government submitted that all the recordings pertaining to the
charges had been retained, included in the pre-trial investigation
material as transcripts and presented as evidence in court. Any other
recordings of telephone conversations had been destroyed, as required
by the law in force at the time. The destruction of such recordings
which had not pertained to the offence charged and which had not been
produced to the court could not constitute a violation of
Article 6 §§ 1 and 3 (b) of the Convention.
Moreover, the decisions by the authorities in respect of the
applicant’s requests to gain access to the totality of the
recordings had been taken in conformity with the requirements of
Article 6 § 1 of the Convention.
- The
Government reiterated that it was the task of the domestic courts to
assess the evidence presented to them and to decide whether it was
sufficient for a conviction. In the present case the national courts
had assessed the evidence submitted and found the applicant guilty as
charged. The Government maintained that the parties had had equal
access to the same recordings and other documents that had played a
part in the formation of the courts’ opinion.
- The
Government further pointed out that the Court’s case-law
obliges the prosecution authorities to disclose to the defence all
material evidence in their possession for or against the accused.
However, the entitlement to disclosure of relevant evidence was not
an absolute right. In this case, the recordings of telephone
conversations not pertaining to the offence had been destroyed. The
prosecution had thus been unable to disclose to the defence the
requested recordings. However, it had been possible to obtain
information about all the telephone conversations between the
defendants by hearing them in person in court.
- The
Government submitted that the rights of the defence had been further
safeguarded by the principle of objectivity governing the duties of
public prosecutors, as provided in section 1 of the Act on Public
Prosecutors. The prosecutor had co-operated with the police during
the pre-trial investigation and had thus been able to participate in
the selection of the recordings included in the case file, based on
his view of which information did or did not relate to the matter.
- The
Government further contended that the applicant had not insisted that
the destroyed recordings had contained material favourable to his
defence until after having submitted his letter of appeal to the
Court of Appeal. The Government argued that the applicant could have
described the contents of the destroyed telephone calls during the
pre-trial investigation as well as in the court proceedings.
- In
the light of the above, the Government argued that the principle of
equality of arms had been respected by the authorities and the
applicant had been afforded adequate facilities to prepare his
defence in accordance with Article 6 §§ 1 and 3 (b) of the
Convention. It followed that there had been no violation of Article 6
§§ 1 and 3 (b) of the Convention.
- In
their further observations the Government argued that the applicant
had in his initial application only complained about the lack of
access to the totality of recorded telephone conversations and that
the facts concerning telephone metering information, as they
transpired from the fresh documents (see paragraph 29 above),
constituted a new complaint. In that part the application had been
submitted out of the six months’ time-limit. Furthermore, the
applicant had not raised the said issue before the national courts
and had thus failed to exhaust the domestic remedies in that respect.
2.
The Court’s assessment
- The
Court firstly notes that the applicant’s complaints, as
submitted in his application, only concerned lack of access to the
totality of recordings of telephone conversations between himself and
the other defendants, and not the telephone metering information
obtained through the secret surveillance. Rather than a fresh
complaint, his subsequent submission of letters relating to the facts
of the case may be regarded as a response to the Government’s
contention that he had not pleaded the relevance of the destroyed
recordings to his defence until having submitted the letter of
appeal. For this reason the Court does not find it necessary to
examine the Government’s argument set out in paragraph 36
above. As to the other submissions of the parties, the Court states
the following.
- The
Court reiterates that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial set out in paragraph 1.
In the circumstances of the case it finds it unnecessary to examine
the applicant’s allegations separately from the standpoint of
paragraph 3 (b), since they amount to a complaint that he did not
receive a fair trial. It will therefore confine its examination to
the question of whether the proceedings in their entirety were fair
(see Edwards v. the United Kingdom, 16 December 1992, §§
33-34, Series A no. 247 B, and Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, § 59, ECHR 2000 II).
- It
is a fundamental aspect of the right to a fair trial that criminal
proceedings, including the elements of such proceedings which relate
to procedure, should be adversarial and that there should be equality
of arms between the prosecution and defence. The right to an
adversarial trial means, in a criminal case, that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence adduced by the
other party. In addition Article 6 § 1 requires that the
prosecution authorities disclose to the defence all material evidence
in their possession for or against the accused (see, mutatis
mutandis, Rowe and Davis, cited above, § 60,
with further references).
- However,
the entitlement to disclosure of relevant evidence is not an absolute
right. In any criminal proceedings there may be competing interests,
such as national security or the need to protect witnesses at risk of
reprisals or keep secret police methods of investigation of crime,
which must be weighed against the rights of the accused. In some
cases it may be necessary to withhold certain evidence from the
defence so as to preserve the fundamental rights of another
individual or to safeguard an important public interest. However,
only such measures restricting the rights of the defence which are
strictly necessary are permissible under Article 6 § 1.
Moreover, in order to ensure that the accused receives a fair trial,
any difficulties caused to the defence by a limitation on its rights
must be sufficiently counterbalanced by the procedures followed by
the judicial authorities (see, mutatis mutandis, Rowe and
Davis, cited above, § 61, with further references).
- In
cases where evidence has been withheld from the defence on public
interest grounds, it is not the role of this Court to decide whether
or not such non-disclosure was strictly necessary since, as a general
rule, it is for the national courts to assess the evidence before
them. In any event, in many cases, such as the present one, where the
evidence in question has never been revealed, it would not be
possible for the Court to attempt to weigh the public interest in
non-disclosure against that of the accused in having sight of the
material. It must therefore scrutinise the decision-making procedure
to ensure that, as far as possible, it complied with the requirements
to provide adversarial proceedings and equality of arms and
incorporated adequate safeguards to protect the interests of the
accused (see, mutatis mutandis, Rowe and Davis, cited
above, § 62).
- More specifically, Article 6 § 3 (b) guarantees
the accused “adequate time and facilities for the preparation
of his defence” and therefore implies that the substantive
defence activity on his behalf may comprise everything which is
“necessary” to prepare the main trial. The accused must
have the opportunity to organise his defence in an appropriate way
and without restriction as to the possibility to put all relevant
defence arguments before the trial court and thus to influence the
outcome of the proceedings (see Can v. Austria, no. 9300/81, §
53, Commission’s report of 12 July 1984, Series A no.
96, and Moiseyev v. Russia, no. 62936/00, § 220,
9 October 2008). Furthermore, the facilities which should
be enjoyed by everyone charged with a criminal offence include the
opportunity to acquaint himself, for the purposes of preparing his
defence, with the results of investigations carried out throughout
the proceedings (see C.G.P. v. the Netherlands, (dec.), no.
29835/96, 15 January 1997, and Galstyan v. Armenia, no.
26986/03, § 84, 15 November 2007).
- Failure to disclose to the defence material evidence,
which contains such particulars which could enable the accused to
exonerate himself or have his sentence reduced would constitute a
refusal of facilities necessary for the preparation of the defence,
and therefore a violation of the right guaranteed in Article 6 §
3 (b) of the Convention (see C.G.P., cited above). The accused
may, however, be expected to give specific reasons for his request
(see Bendenoun v. France, 24 February 1994, § 52, Series
A no. 284) and the domestic courts are entitled to examine the
validity of these reasons (see C.G.P., cited above).
- Turning
to the present case, the Court observes that the number of the
destroyed recordings, or the contents thereof, cannot be verified
from the material submitted. The Government have not, however,
contested the applicant’s submission that the amount of such
recordings was of some significance. Nor have they been able to
provide any specific information about their contents.
- As
to the Government’s contention that the applicant had only
pleaded the relevance of the destroyed recordings after having
submitted his letter of appeal to the Court of Appeal, the Court
notes that under domestic law the Court of Appeal was empowered to
consider questions of both fact and law, and it was still open to the
applicant to request new evidence to be produced at that stage.
Moreover, the Government have not argued that the requested
recordings would, in fact, have been available in the District Court
proceedings, any more than in the proceedings before the Court of
Appeal. The Court notes in this connection that, although the actual
time of destruction of the recordings in question remains unclear, it
had presumably taken place in the course of the pre-trial
investigation. In this respect the Court refers to the relevant
provision of the Coercive Measures Act in force at the relevant time
(see paragraph 21 above). As to the Government’s argument that
the applicant could have described the contents of the destroyed
recordings, the Court considers that the applicant could not have
been expected to announce his alleged involvement in a different
offence, punishable by law, prior to any charges having been brought
against him.
- The
Court reiterates that the requirements of Article 6 presuppose that
having given specific reasons for the request for disclosure of
certain evidence which could enable the accused to exonerate himself,
he should be entitled to have the validity of those reasons examined
by a court. Although the applicant, in this case, must have known the
contents of the destroyed recordings, as far as they involved him,
and even if he had been able to put questions during the trial
concerning all of the conversations with the other defendants, the
Court points out that the national courts did not find the
defendants’ allegations about the purchase of illegal weapons
credible, for lack of other supporting evidence (see paragraphs 12
and 17 above). Furthermore, the Court of Appeal did not refuse to
order the disclosure of the requested recordings on the ground that
the applicant had not given specific and acceptable reasons for his
request. Instead, it declined to render a decision in that respect,
as the recordings had been destroyed and could thus not have been
disclosed to the defence or produced to the court (see paragraphs 15
and 16 above).
- Even
though the police and the prosecutor were obliged by law to take into
consideration both the facts for and against the suspect, a procedure
whereby the investigating authority itself, even when co-operating
with the prosecution, attempts to assess what may or may not be
relevant to the case, cannot comply with the requirements of Article
6 § 1. Moreover, it is not clear to what extent the prosecutor
was, in fact, involved in the decision to destroy those recordings
which were not included in the case file. In this case, the
destruction of certain material obtained through telephone
surveillance made it impossible for the defence to verify its
assumptions as to its relevance and to prove their correctness before
the trial courts.
- The
Court finds that the present case is different from, inter alia,
Fitt v. the United Kingdom [GC] (no. 29777/96, ECHR 2000 II)
and Jasper v. the United Kingdom [GC] (no. 27052/95, 16
February 2000) where the Court was satisfied that the defence were
kept informed and were permitted to make submissions and participate
in the decision-making process as far as possible and noted that the
need for disclosure was at all times under the assessment of the
trial judge, providing a further, important, safeguard. In those
cases the Court found no violation under Article 6 § 1 (see
Fitt, §§ 48-49, and Jasper, §§
55-56). The Court recalls that, in this case, the decision regarding
the undisclosed evidence was, presumably, made in the course of the
pre-trial investigation without providing the defence with the
opportunity to participate in the decision-making process.
- In
the present case the Court further notes that the contested measure
stemmed from a defect in the legislation, in that it failed to offer
adequate protection to the defence, rather than any misconduct of the
authorities, who were obliged by law, in force at the time, to
destroy the impugned recordings (see paragraph 21 above). The Court
observes that in the Government Bill for the amendment of the
Coercive Measures Act it was considered problematic that information
supporting the innocence of the suspect could be destroyed before the
resolution of the case (see paragraph 22 above). The relevant
provision was amended with effect from 1 January 2004 with
a view to better safeguarding the rights of the defence. This
amendment, however, came too late for the applicant.
- Having
regard to the above considerations, the Court concludes that there
has been a violation of Article 6 § 1 of the Convention taken
together with Article 6 § 3 (b) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant also complained under Article 6 § 2 of the Convention
that the presumption of innocence had not been respected as he had
been made to bear the burden of proof about not being involved in the
purchase of illegal drugs. The said Article reads:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The
Government contested that argument.
- The
Court reiterates that, as a general rule, it is for the national
courts to assess the evidence before them, while it is for the Court
to ascertain that the proceedings considered as a whole were fair,
which in the case of criminal proceedings includes the observance of
the presumption of innocence. Article 6 § 2 requires, inter
alia, that when carrying out their duties, the members of a court
should not start with the preconceived idea that the accused has
committed the offence charged; the burden of proof is on the
prosecution, and any doubt should benefit the accused. Thus, the
presumption of innocence will be infringed where the burden of proof
is shifted from the prosecution to the defence (see Telfner v.
Austria, no. 33501/96, § 15, 20 March 2001, with further
references).
- The
Court observes that, in this case, and subject to its above findings
on the applicant’s complaint under Article 6 §§ 1 and
3 (b) of the Convention, the District Court convicted the applicant
after adversarial proceedings, in which he had the possibility to
challenge the evidence produced against him. The applicant’s
conviction was upheld by the Court of Appeal after a full review of
the case in an oral hearing. Both courts gave reasons for their
decisions. Having regard to the facts of the case, and given its
subsidiary role regarding the assessment of evidence, the Court
cannot conclude that the prosecutor had failed to establish a
convincing prima facie case against the applicant. There is no
indication that the domestic courts had a preconceived idea of the
applicant’s guilt. In these circumstances it cannot be said
that the domestic courts had shifted the burden of proof to the
defendant (see, a contrario, Telfner v. Austria, cited
above, § 18). It follows that this complaint must be rejected as
being manifestly ill-founded, pursuant to 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 requested, firstly, that the Court declare that the most
appropriate form of redress would be, in principle, to order the
re-opening of the case. In the event of a finding that the
requirements of Article 6 § 1 had not been complied with, the
charge against the applicant should be dismissed. Secondly, in
respect of non-pecuniary damage, the applicant claimed 3,000 euros
(EUR).
- The
Government considered the claim excessive as to quantum. Any award
should not exceed EUR 2,500.
- The
Court accepts that the lack of guarantees of Article 6 has caused the
applicant non-pecuniary damage, which cannot be made good by the mere
finding of a violation. Making its assessment on an equitable basis,
it awards him EUR 2,500 in respect of non-pecuniary damage. The Court
considers that the award of non-pecuniary damage provides a
sufficient redress in this case, having regard, in particular, to the
destruction of recordings.
B. Costs and expenses
- The
applicant claimed EUR 4,278.88 (inclusive of value-added tax) for the
costs and expenses incurred before the Court.
- The
Government pointed out that the Court had invited observations only
in respect of complaints submitted under Article 6 §§ 1 and
3 (b) of the Convention and that the costs should be reduced
accordingly. Were the Court to consider that the general costs, such
as postage and copying costs, were not already included in counsel’s
fee, the Government considered them reasonable as to quantum. The
total award for the costs and expenses should not exceed EUR 3,200.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the application to the Court was examined under the joint procedure
provided for under Article 29 § 3 of the Convention and
that the application was only partly successful. Taking into account
all the circumstances, the Court considers it reasonable to award the
sum of EUR 3,800 (inclusive of value-added tax) for the proceedings
before the Court.
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 lack of
equality of arms and the right to adequate facilities for the
preparation of the applicant’s defence admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention taken together with Article 6 § 3
(b) of the Convention;
- 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, the following
amounts:
(i)
EUR 2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 3,800 (three thousand eight hundred euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
