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FOURTH SECTION

Application no. 23011/11
Lasse Erik LEHTO
against Finland
lodged on 7 April 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Lasse Erik Lehto, is a Finnish national who was born in 1953 and lives in Espoo. He was represented before the Court by Mr Miikka Hakanen, a lawyer practising in Turku.

A.  The circumstances of the case

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

The applicant was suspected by the police, inter alia, of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) and forgery (väärennys, förfalskning).

On 15 November 2010 the police conducted a search at the applicant’s domicile. The applicant was allowed to be present only briefly and he was not allowed to call a witness to be present. The police had tried to call the owner of the apartment, the applicant’s companion, about 30 minutes after the search had started. The police reached her only after the search had already apparently finished. She had asked the police not to start the search before she arrived.

On 18 November 2010 the applicant filed a criminal report on the acts of the police which was directly transferred to the public prosecutor for decision.

On 16 March 2011 the public prosecutor found that there was no need to conduct a pre-trial investigation in the matter.

B.  Relevant domestic law

1.  Constitution

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.

2.  Coercive Measures Act

Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment.

The person whose domicile is being searched, or in his or her absence someone else, must be given the opportunity to be present at the search and to call a witness, unless this causes delay. If none of the above-mentioned persons were present at the search, the person whose domicile has been searched must be informed immediately (Chapter 5, section 4, subsection 2).

A search at domicile cannot be conducted between 9 p.m. and 6 a.m. unless there are special reasons (Chapter 5, section 5, subsection 4).

The search warrant is issued by the investigative organs themselves.

3.  Penal Code

According to Chapter 29, section 2, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 769/1990), a person can be sentenced for aggravated tax fraud to imprisonment for at most four years. Chapter 33, section 1, of the Penal Code provides that a person can be sentenced for forgery to a fine or imprisonment for at most two years.

4.  Remedies

According to section 118, subsection 3, of the Constitution everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act.

Chapter 40, section 9, subsection 1, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.

Chapter 40, section 10, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine.

According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act no. 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties.

COMPLAINTS

The applicant complains that Articles 8 and 13 of the Convention have been violated. The applicant’s home was searched without a court order and also his companion’s property was seized. A search should not be conducted before the owner of the apartment has been informed. The applicant should have been present during the search. After the search some property had disappeared from the apartment. The applicant could not complain about the search to any tribunal as there is no effective remedy available under the Finnish legislation.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicant’s right to respect for his home within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?