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FOURTH
SECTION
DECISION
Application no.
26813/09
Juha Mikael RAUTONEN
against Finland
The
European Court of Human Rights (Fourth Section), sitting on 15 May
2012 as a Chamber composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Vincent
A. De Gaetano,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
regard to the above application lodged on 14 May 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Juha Mikael Rautonen, is a Finnish national, who was
born in 1970 and lives in Tampere. He is represented before the Court
by Mr Mikko Lehti, a lawyer practising in Tampere. The Finnish
Government (“the Government”) were represented by their
Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
13 November 2003 the applicant, together with four other persons, was
questioned by the police as a suspect in a forgery that allegedly
took place in July 2003.
- On
7 December 2004 charges were brought against the applicant. A hearing
before the Tampere District Court (käräjäoikeus,
tinsgrätten) was scheduled for 7 May 2007 but it was
cancelled due to the absence of two co defendants.
- On
21 October 2009 the Tampere District Court convicted the applicant of
aiding and abetting forgery and sentenced him to pay 30 day fines,
in total 180 euros.
- By
letter dated 14 November 2009 the applicant appealed to the Turku
Appeal Court (hovioikeus, hovrätten), requesting that his
sentence be mitigated due to the excessive length of the proceedings.
Subsequently, the applicant also claimed compensation under the new
Act on Compensation for Excessive Duration of Judicial Proceedings.
- On
25 May 2010 the Turku Appeal Court upheld the District Court’s
conviction but decided not to impose any sentence on the applicant.
It found that there was reason to mitigate the sentence as a
considerably long period had passed since the commission of the
offence. As to compensation, the court found that the mitigation of
the sentence in itself was a sufficient remedy and that the applicant
could therefore not be granted any monetary compensation under the
new Act.
- By
letter dated 15 July 2010 the applicant appealed to the Supreme Court
(korkein oikeus, högsta domstolen), claiming that
mitigation of the sentence was not sufficient compensation for the
excessive length of proceedings.
- On
8 February 2011 the Supreme Court refused the applicant leave to
appeal.
B. Relevant domestic law and practice
Mitigation
- According
to Chapter 6, section 7, of the Penal Code (rikoslaki,
strafflagen; as amended by Act no. 515/2003),
“[i]n addition to what is provided above in
Section 6, grounds mitigating the punishment 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 reason 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 lengthy
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
so in that precedent case. 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 (in the precedent case over
five and a half years) had been unreasonable. It concluded that in
that case there were no grounds to waive a sentence or to mitigate
the sentence owing to the duration of the proceedings.
- In its judgment of 15 June 2005 (KKO:2005:73),
the Supreme Court, applying Chapter 6, section 7, subsection 3, of
the Penal Code, reduced the sentence imposed upon the applicant by
six months owing to the length of the proceedings that had lasted
some ten years. The court imposed an immediate term of ten months’
imprisonment, finding that it was not justifiable to mitigate the
sentence further by suspending the term of imprisonment.
Compensation for excessive length
- The
Act on Compensation for Excessive Duration of Judicial Proceedings
(laki oikeudenkäynnin viivästymisen hyvittämisestä,
lagen om gottgörelse för dröjsmål vid rättegång;
Act no. 362/2009) entered into force on 1 January 2010. The Act
provides for a party a right to receive compensation from State funds
whenever judicial proceedings concerning that party have been
excessively long.
Fines
- According
to Chapter 2a, sections 1-3, of the Penal Code,
“Section 1 - Number of day fines (550/1990)
A fine shall be passed as day fines, the minimum number
of which is one and the maximum number is 120.
...
Section 2 - Amount of a day fine (808/2007)
The amount of a day fine shall be set so that it is
reasonable in view of the solvency of the person fined.
One sixtieth of the average monthly income of the person
fined, less the taxes and fees defined by a Decree and a fixed
deduction for basic consumption, is deemed to be a reasonable amount
of a day fine. The maintenance liability of the person fined may
decrease the day fine.
The primary basis for the calculation of the monthly
income is the income of the person fined as indicated in the most
recent taxation. If the income of the person fined cannot be reliably
ascertained from the tax records or it has essentially changed since
the most recent taxation, it may be assessed also on the basis of
other information.
...
Section 3 - Total amount of the fine (550/1999)
The total amount of the fine is equal to the number of
day fines times the amount of a day fine.
...”
- Chapter
2a, section 4, of the same Code provides the following:
“Section 4 - Passing a conversion sentence
(578/2008)
A person who has been sentenced to a fine and from whom
the collection of the fine has failed, shall be ordered to
imprisonment in lieu of the unpaid fine. A conversion sentence shall
be passed for an unpaid threat of a fine, the collection of which has
failed, if the court has imposed it in order to ensure the conduct of
court proceedings or pursuant to the Enforcement Code (705/2007). Any
other threat of fine may not be converted into imprisonment.”
COMPLAINT
- The
applicant complained under Article 6 of the Convention about the
excessive length of the proceedings.
THE LAW
- The
applicant complained under Article 6 of the Convention that the
length of criminal proceedings against him had been excessive.
Article 6 of the Convention 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 argued that the applicant could no longer be considered as
a victim because the excessive length of proceedings had been
expressly acknowledged and remedied by the Appeal Court. The
mitigation of the applicant’s sentence was substantial in its
amount as it concerned the whole sentence. The redress was thus
express and quantifiable and it made good any violation concerning
the excessive length of proceedings. Moreover, the applicant also
claimed monetary compensation for the excessive length, which claim
was rejected by the Appeal Court. The applicant could thus no longer
claim to be a victim.
- The
Government also argued that the applicant had not exhausted all
domestic remedies as he had not appealed about the compensation issue
to the Supreme Court.
- The
applicant maintained that he had exhausted all domestic remedies
available, including the new compensation remedy.
- The
Court notes that the period to be taken into consideration for the
purposes of the “reasonable time” requirement began on 13
November 2003 when the applicant was questioned by the police as a
suspect. It ended on 25 May 2010 when the Appeal Court delivered
its judgment. The applicant’s appeal to the Supreme Court only
concerned the excessive length issue. The criminal proceedings
against the applicant lasted thus some 6 years and 6 months at two
levels of jurisdiction.
- The
Court notes that the applicant had exhausted all domestic remedies as
he had appealed against the length issue to the Supreme Court. The
Government’s objection concerning the non-exhaustion must
therefore be rejected.
- The
Court notes that the core question is whether the applicant may
continue to claim to be a victim of a violation of Article 6 § 1
of the Convention on the grounds of the length of criminal
proceedings against him in view of the fact that his sentence was
mitigated.
- An
individual can no longer claim to be a victim of a violation of the
Convention when the national authorities have acknowledged, either
expressly or in substance, the breach of the Convention and afforded
redress (see Eckle v. Germany, 15 July 1982, § 66, Series
A no. 51; for the application of this principle in the context of
Article 6, see Lüdi v. Switzerland, 15 June 1992, §
34, Series A no. 238; and Schlader v. Austria (dec.), no.
31093/96, 7 March 2000).
- In
this regard the mitigation of a sentence on the ground of excessive
length of proceedings does not in principle deprive the individual
concerned of his status as a victim within the meaning of Article 34
of the Convention. However, this general rule is subject to an
exception when the national authorities have acknowledged in a
sufficiently clear way the failure to observe the reasonable time
requirement and have afforded redress by reducing the sentence in an
express and measurable manner (see Eckle v. Germany,
cited above, § 66; Beck v. Norway, no. 26390/95,
§ 27, 26 June 2001; Cocchiarella v. Italy
[GC], no. 64886/01, § 77, ECHR 2006 V; and Morby v.
Luxembourg (dec.), no. 27156/02, ECHR 2003 XI).
- Applying
these principles in the present case, the Court notes that the Appeal
Court expressly upheld the substance of the applicant’s length
complaint when it stated that it was taking into account the length
of the proceedings in waiving his sentence. It can therefore be said
that the applicant was afforded express and quantifiable redress for
the breach of the reasonable time requirement (see Beck v. Norway,
cited above, §§ 27-29; see also Jensen v. Denmark
(dec.), no. 48470/99, ECHR 2001-X). As to the sufficiency of this
redress, for the Court the amount of the day-fines imposed is not
relevant as those amounts reflect in the Finnish system the accused’s
earnings. More important is to note that day-fines can be converted
into a prison sentence. For the Court it is sufficient that,
regardless of its content, the whole sentence was waived by the
Appeal Court which thereby provided the applicant immediate relief
vis-à-vis his length complaint.
- Moreover,
the Court notes that the Appeal Court also examined in its judgment
the possibility of granting the applicant monetary compensation due
to the excessive length of the proceedings but finally rejected this
claim. The applicant was able to challenge this outcome before the
Supreme Court which did not grant him leave to appeal. The
compensation issue was thus assessed by two different domestic courts
which both found that there was no need to grant any additional
compensation.
- In
conclusion, the Court, exercising its supervisory function, is
satisfied that the redress given by the Appeal Court, when
immediately waiving the whole sentence to remedy the applicant’s
length complaint, was sufficient. The applicant can therefore no
longer claim to be a victim of a breach of the “reasonable
time” requirement as required by Article 34 of the Convention.
- It
follows that this application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court
Declares by a majority the application inadmissible.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
