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Cite as: [2008] ECHR 1774
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FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
43180/04
by Jussi UOTI
against Finland
The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 23 November 2004,
Having regard to the partial decision of 29 May 2007,
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 Jussi Uoti, is a Finnish national who was born in 1964 and lives in Turku. He was represented before the Court by Mr M. Brander, a lawyer practising in Turku. 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 and as they appear from the documents on the file, may be summarised as follows.
The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud.
On 29 January 1996 the applicant was questioned by the police as a suspect and he was subsequently charged with four counts of economic crime allegedly committed in 1991.
On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld the applicant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court.
Meanwhile, a second hearing was held on 12 June 1996. On 6 August 1996 the applicant was charged with aggravated fraud allegedly committed in 1991. At the third hearing on 27 August 1996, the District Court upheld his claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision.
At the same hearing on 27 August 1996 the public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996.
On 21 January 1998 the District Court upheld co-defendant X’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision.
Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue.
On 18 May 2000 the District Court issued a separate decision dismissing the applicant’s request that the charges against him be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed the applicant’s renewed request. On 12 January 2001 the applicant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001.
There were 28 days of hearings in the District Court up to the end of 2000, held at intervals of approximately two to five months.
On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of the applicant, who was residing in Spain at the time, to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, the applicant would be granted immunity from further prosecution in Finland for offences he had previously committed.
On 14 August 2001 the District Court found that the criminal case against the applicant was barred on the basis of immunity.
On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue the applicant’s prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The applicant’s appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland.
The applicant challenged the lawfulness of the continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003.
The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill.
Meanwhile, on 25 February and 20 August 2003 respectively the District Court dismissed the applicant’s further requests that the charges be ruled inadmissible owing to the length of the proceedings. On 9 February 2004 it also dismissed his renewed request, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal.
On 31 August 2004 the District Court dismissed the applicant’s renewed request to have the charges against him declared inadmissible on account of the length of the proceedings.
During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003.
There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004.
On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need for the allocation of adequate financial resources to both the District Court and the authorities involved in the case.
On 21 March 2006 the District Court gave its judgment. It found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected.
The court dismissed as time-barred the charges concerning four counts of debtor dishonesty and acquitted the applicant of two counts of aggravated fraud. Finally, it dismissed the charge of debtor dishonesty. It ordered the applicant and two co-defendants jointly to pay damages in the amount of some 100,000 euros (EUR), together with interest from 25 May 1992.
The public prosecutor appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007.
On 22 October 2007 the Court of Appeal gave its judgment, convicting the applicant of aggravated fraud. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court, however, found that the applicant had contributed to the length of the proceedings as, at the time when the summonses were served, he had been abroad and thereby been difficult to reach. Nevertheless, the court stated that it would reduce the applicant’s sentence by half owing to the lengthy proceedings.
Having noted the length of the standard sentence for the aggravated fraud in question and having as a mitigating factor taken into account that the sentence could have been imposed at the time of the imposition of the applicant’s previous sentences (which would have been more advantageous for the applicant) and in that connection the so-called maximum sentence rule laid down by Chapter 7, article 2, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 697/1991), the Court of Appeal noted that 60 days’ imprisonment would have been appropriate had the proceedings not been excessively lengthy. However, owing to the breach of the “reasonable time” requirement, the Court of Appeal sentenced him to an immediate term of 30 days’ imprisonment. It applied Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004). Having regard to the seriousness of the applicant’s offence, the damage thereby caused and the considerable advantage pursued and achieved, the court considered that the maintaining of general obedience to the law required that the prison term be an immediate one. The two latter factors led the court to conclude that community service was not an option.
The applicant requested leave to appeal to the Supreme Court, which was refused on 22 May 2008.
B. Relevant domestic law and practice
Chapter 6, article 7, point 3 of the Penal Code reads:
“In addition to what is provided above in section 6, grounds for mitigating the sentence 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 reasons lead to an unreasonable or exceptionally detrimental result.”
Chapter 6, article 12, point 4, of the Penal Code provides:
“The court may waive the sentence if
...
4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services;
...”
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 long proceedings, such a dismissal or declaration of inadmissibility 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 the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that, in this case, there were no grounds not to impose 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, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment.
On 1 February 2006 the Supreme Court delivered a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence.
COMPLAINTS
THE LAW
The applicant alleged a violation of the right to trial within a “reasonable time” and the absence of an effective remedy.
Article 6 § 1 reads insofar as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
The Government argued that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention on the following grounds. In its judgment the Court of Appeal mitigated the applicant’s sentence by half of the standard sentence. When mitigating the sentence, the court referred to Chapter 6, article 7, of the Penal Code containing the grounds for mitigating a sentence. The court expressly discussed the length of the proceedings both generally and then separately for each defendant. It clearly stated what the standard sentence would be for each defendant and then stated by how much, due to the unreasonable length of the proceedings, it was reducing their sentences. The way in which the length of the proceedings was taken into account provided adequate redress for the alleged violation. The Court of Appeal’s judgment became final, when the Supreme Court, in its own proceedings lasting only 5 months, refused leave to appeal. The applicant had been afforded express and quantifiable redress, which was sufficient to make good any violation for the entire length of the proceedings.
As to the Article 13 complaint the Government submitted that Chapter 6, article 7, of the Penal Code constituted an effective remedy within the meaning of Article 13. The effectiveness of the remedy did not depend on the certainty of a favourable outcome. The said remedy, as a general matter and in the manner applied in the present case, fulfilled the requirements of an “effective remedy”. Thus, this part of the application was manifestly ill-founded.
The applicant argued that the reduction of his sentence had not been an effective remedy. Had the charges been dismissed, there would have been no sentence to be mitigated. Only termination of the proceedings could have constituted an effective remedy. He submitted that the harmful nationwide publicity of the case had caused him additional suffering and distress.
B. The Court’s assessment
The period to be taken into consideration for the purposes of the “reasonable time” requirement began on 29 January 1996 when the applicant was questioned by the police as a suspect. It ended on 22 May 2008 when the Supreme Court refused leave to appeal. The proceedings thus lasted over 12 years.
The 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 the 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, judgment of 15 July 1982, Series A no. 51, § 66; for the application of this principle in the context of Article 6, see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238 at § 34, and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000).
In this regard the mitigation of a sentence on the ground of the 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-... and Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003 XI).
Applying these principles in the present case, the Court notes that the Court of Appeal 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 reducing his sentence by half of the appropriate punishment. 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; also Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X). The Court notes that the judgment discussed the various alternatives, finding that the applicant’s sentence could not be waived. Nor was suspended imprisonment considered sufficient. Hence, the Court of Appeal took into account the various possibilities and it explained how it afforded the applicant redress for the excessively lengthy proceedings. The Court, exercising its supervisory function, is satisfied that the redress given was sufficient.
Therefore, the applicant can no longer claim to be a victim of a breach of the “reasonable time” requirement as required by Article 34 of the Convention.
As to the Article 13 complaint, the Court has found above that the applicant has been afforded redress for the breach of the “reasonable time” requirement. In the circumstances, this must be considered as constituting effective redress also for the purposes of Article 13 (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006 ... ).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court would nevertheless wish to draw attention to the fact that subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. It has also stressed the importance of the subsidiarity principle so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that could otherwise, and in the Court’s opinion more appropriately, have been addressed in the first place within the national legal system (see Kudla v. Poland, §§154-55, Reports of Judgments and Decisions 2000-XI).
In this connection, it notes that, under Finnish law, the applicant at no stage of the proceedings was 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], cited above, § 186).
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President