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FOURTH
SECTION
CASE OF SEPPÄLÄ v. FINLAND
(Application
no. 45981/08)
JUDGMENT
STRASBOURG
11 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Seppälä v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
David Thór Björgvinsson,
President,
Päivi Hirvelä,
Mihai
Poalelungi, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45981/08) 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 Henry Joakim Seppälä (“the
applicant”), on 25 September 2008.
- The
applicant was represented by Mr Hannu Kaitaluoma, a lawyer practising
in Kokkola. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- On
22 June 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. In accordance with Protocol No. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975.
- On
2 March 2000 the applicant was first questioned by the police on
suspicion of offences in relation to his business activities. The
last questioning of the applicant took place on 26 June 2001.
- The
first pre-trial investigation reports were completed and sent to the
public prosecutor on 25 October 2000, 4 December 2000 and
4 October 2001. The last pre-trial investigation report was
submitted to the prosecutor on 16 November 2004.
- On
22 December 2004 the prosecutor, who according to the Government had
decided to join the cases concerning the applicant, preferred charges
against him at the District Court. The court held a preliminary
hearing on 16 November 2005 and later an oral hearing over a number
of days. The applicant was heard before the court for the first time
on 12 January 2006.
- On
12 April 2006 the District Court issued its judgment with regard to
the applicant and 24 other defendants in 11 cases which had been
joined. The applicant was convicted of aggravated tax fraud and other
economic offences and sentenced to one year and two months'
imprisonment. Jointly with other defendants, he was also ordered to
pay some EUR 89,000 with interest to the tax authorities.
- In
its reasoning the District Court stated that the majority of the
criminal acts in respect of all defendants had been committed in 1998
and 1999. The bulk of cases had been lodged with the court on
22 December 2004. The last application for a summons in the
joined cases had been filed with the court on 27 July 2005.
The court noted that the case concerned particularly wide-ranging
economic crimes. The examination of the cases needed to be joined due
to the connections between different companies and persons involved.
For that reason the court, in sentencing the defendants, took into
account only to a lesser degree the time that had elapsed since the
commission of the criminal acts and the length of the proceedings as
mitigating circumstances. The amount of reduction in the respective
sentences was not specified by the court. As regarded the applicant,
the court also took into account his previous community service and
noted that he had committed the crimes partly while on probation.
- On
27 November 2007, having held an oral hearing, the Court of Appeal
dismissed the applicant's appeal, including his complaint concerning
the length of the proceedings.
- On
31 March 2008 the Supreme Court refused leave to appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 2 March 2000 when the
applicant was first questioned by the police and ended on 31 March
2008, when the Supreme Court refused leave to appeal. The proceedings
thus lasted eight years and one month for three levels of
jurisdiction.
A. Admissibility
- The
Government raised an objection claiming that the applicant had failed
to exhaust the domestic remedies in that he did not request the
District Court to mitigate his sentence relying on Chapter 6, section
7, point 3 of the Penal Code (rikoslaki, strafflagen, as
amended by Act no. 515/2003), which provides for that
possibility where a considerably long period has passed since the
commission of the offence. The applicant only raised that issue on
appeal.
- The
Court observes that the District Court elaborated on the question of
length of proceedings with regard to all defendants, including the
applicant, however taking it into account only to a lesser degree.
The Court notes that had the District Court, or the higher courts on
appeal, as requested by the applicant, reduced his sentence in a
manner which provided express and quantifiable redress for the
alleged breach of the reasonable time requirement, an issue might
arise as to the applicant's victim status (see, for example Beck
v. Norway, no. 26390/95, §§ 27-29, 26 June
2001 and Uoti v. Finland (just satisfaction), no. 61222/00, §
14, 13 January 2009). However, this was not the case.
Furthermore, under Finnish law in force at the time, a defendant 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-... ).
Consequently, as the Government have not shown that any form of
relief – either preventive of compensatory – was
available for the applicant, the Government's argument of
non-exhaustion of domestic remedies must be rejected (see, mutatis
mutandis, Kangasluoma v. Finland, no. 48339/99, §§48-49,
20 January 2004).
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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 argued that while the applicant himself did not hinder the
proceedings at the pre-trial stage, the investigation into a number
of offences, of which the applicant was one of the several suspects,
had been delayed due to the conduct of another suspect. According to
the Government, that person had not been apprehended for questioning
until 7 October 2004 after long-lasting efforts by the police to
that end. After having conducted that hearing, the police had swiftly
completed the pre-trial investigation and the case material had been
submitted to the prosecutor. In the Government's view, the delay of
more than three years between the last questioning of the applicant
in June 2001 and the completion in November 2004 of the
pre-trial investigation, as far as the applicant was concerned, was
caused by another suspect and was thus not attributable to the State.
- The
Government also argued that the time taken by the public prosecutor
for the consideration of charges had been greatly affected by the
above-mentioned delay in the pre-trial investigation. The
prosecutor's decision to join the cases due to the close link between
them had been justified. After having received the last pre-trial
investigation report in the cases concerning the applicant, the
prosecutor had proceeded without delay. The need to examine all
charges together had also been acknowledged by the District Court.
- The
Government pointed out that the District Court's preparatory hearing
of 16 November 2005 had been held in the applicant's absence, as the
authorities had not been able to summon him. The applicant had
subsequently been apprehended in Spain and brought to the main
hearing on 12 January 2006. The Government was of the opinion
that the applicant had tried to abscond from the trial and there had
been a delay of nearly two months in the District Court proceedings
in respect of the applicant for which the State was not responsible.
- The
Government concluded that there had been no unnecessary delay or
inactivity on the part of the authorities in dealing with the case.
Moreover, the case had been a complex one concerning economic
offences and the evidence produced to the courts had been extensive.
- The
applicant contested the Government's arguments. There had been no
means available to him to speed up the proceedings at any stage. He
had not been responsible for the inability of the police to question
other suspects. Neither had he been able to affect the prosecutor's
decision to join the cases of different suspects. The authorities
took the risk of delaying the proceedings by joining several cases in
the same proceedings. The applicant's absence from the District
Court's preliminary hearing had not affected the conduct of the
proceedings in any way. The applicant had not even been obliged to
appear at that hearing.
- The
Court observes that the time taken by the police and the prosecution
prior to the court proceedings was almost four years and ten months,
which can be considered quite long even in a case concerning economic
crime. The Court takes note of the Government's submission that the
proceedings at the pre-trial stage, including the consideration of
charges, were delayed on account of the difficulties encountered by
the police in reaching one of the applicant's co-suspects. The Court
further takes note of the Government's submission as to the
appropriateness of the joint examination of the bulk of intertwined
cases. However, in the absence of any documentary evidence by the
Government, the Court cannot verify and assess whether the police, in
fact, resorted to all available measures, to a sufficient degree, in
their attempts to locate the co-suspect for questioning. Thus, the
Court is unable to come to the conclusion that the delay in the
pre-trial proceedings was not attributable to the State. It is,
however, clear from the submissions of both parties that the delay at
that stage was not caused by the applicant.
- The
Court observes that the examination of the case by the District Court
took over one year and three months. It lasted another year and seven
and a half months until the Court of Appeal issued its judgment. The
Supreme Court's decision on the application for leave to appeal was
given some four months later. The Court takes note of the
Government's argument concerning the complexity of the case and the
extent of the case material. The nature and volume of the case may
well explain the time elapsed before the trial courts. The Court is
not, however, convinced by the Government's argument that the
applicant's absence from the District Court's preliminary hearing
delayed the proceedings. It has not even been suggested by the
Government that the court had been unable to proceed with the
examination of the case in other parts until the applicant's presence
could be secured.
- 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.
II. 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.”
- The
Government submitted that in his letter of 17 December 2009 to the
Court the applicant did not claim any just satisfaction. Accordingly,
no sum should be awarded on that account.
- The
Court notes that by letter dated 9 November 2009 the Court invited
the applicant to submit by 21 December 2009 his written observations
together with any claims for just satisfaction. The practice
direction for formulating those claims was enclosed. The applicant's
attention was drawn to Rule 60 of the Rules of Court and he was
reminded that failure to submit quantified claims, together with the
required supporting documents, entailed the consequence that the
Chamber would either make no award of just satisfaction or else
reject the claim in part. This applied even if the applicant had
indicated his wishes concerning just satisfaction at an earlier stage
of the proceedings.
A. Damage
- The
Court observes that in his application form the applicant claimed
3,000 euros (EUR) in respect of non-pecuniary damage. He submitted
that due to the lengthy proceedings he had lived in constant
uncertainty about the possible consequences of the criminal
suspicions against him, which had caused him suffering. The Court
further observes that while in his reply to the Court's letter of 9
November 2009 the applicant did not specify his claim for
non-pecuniary damage again, he nevertheless referred to all documents
submitted earlier to the Court and stated that all the demands
previously made remained the same.
- The
Court notes that its award in respect of non-pecuniary damage is
intended to provide financial compensation for non-material harm, for
example mental or physical suffering. It is in the nature of
non-pecuniary damage that it does not lend itself to precise
calculation. If the existence of such damage is established, and if
the Court considers that an award in money is necessary, it will make
an assessment on an equitable basis, having regard to the standards
which emerge from its case-law.
- The
Court has found a violation of the applicant's right to have criminal
proceedings against him conducted within a reasonable time. It
considers that the applicant must have sustained non-pecuniary damage
as a result of that violation. Having regard to the Court's
considerations on the merits of the case, and ruling on an equitable
basis, it awards him EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
Court observes that in his application form the applicant also
claimed EUR 1,500 for lawyers' fees.
- According
to the Court's established case-law, an award can be made in respect
of costs and expenses only in so far as they have been actually and
necessarily incurred by the applicant and are reasonable as to
quantum. The Court notes that the applicant has not submitted any
bill or invoice of the fees claimed. In these circumstances the Court
finds itself unable to determine to what extent the above
requirements have been met and, accordingly, dismisses the
applicant's claim in this part.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
3,000 (three thousand 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 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David Thór Björgvinsson
Deputy
Registrar President
