by Ari Erkki SIITONEN
The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 August 2007,
Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Ari Erkki Siitonen, is a Finnish national who was born in 1967 and lives in Haarajoki. He was represented before the Court by Mr Pekka Romo, a lawyer practising in Hämeenlinna. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 March 2001 the applicant was detained by the police on suspicion of an aggravated receiving offence. He was released ten days later. The investigation was carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) who questioned the applicant on five occasions between 7 and 15 March 2001, once on 21 December 2001 and again on 20 September 2004. At the time of the last round of questioning he was suspected of nine offences altogether, including aggravated receiving offences, aiding and abetting aggravated fraud and aiding and abetting aggravated tax fraud. On 31 December 2004 he submitted a final statement to the National Bureau of Investigation, maintaining that he was innocent. He also contested the gravity of the suspected receiving offences and claimed that they fell under the statute of limitations.
On 30 May 2006, having had no word from the authorities after submitting his final statement, the applicant filed a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) maintaining that the pre-trial investigation against him had lasted too long.
On 21 December 2006, after having obtained a written account from the head of the investigation and the public prosecutor as well as statements from the National Bureau of Investigation and the Deputy Prosecutor General (apulaisvaltakunnansyyttäjä, biträdande riksåklagaren), the Parliamentary Ombudsman issued her decision. She observed that the investigation regarding the applicant had been referred in August 2005 to the public prosecutor for consideration of charges and that the case was still pending at the local prosecution unit. She noted, however, that the police had simultaneously investigated other suspected offences, which were linked to the investigation concerning the applicant. The last parts of those investigations had been referred to the prosecutor in April 2006.
The Parliamentary Ombudsman took the view that the pre-trial investigation had been remarkably lengthy. She noted the following reasons. The case was exceptionally extensive and it was obviously complex. The written material comprised some 8,300 pages. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) presupposed that a criminal case be investigated in such a manner that enabled the presentation of all the evidence at one hearing. The investigations had also been delayed by requests for international legal assistance, changing of the prosecutor and extensions of the time-limits for obtaining the final statements of the suspects.
In the light of all the information submitted to her, the Parliamentary Ombudsman did not find any unlawful conduct on the part of any particular public official which would have required action on her part. She did acknowledge, however, that under section 21 of the Constitution the State had a responsibility to provide for a public hearing within a reasonable time. She also referred to Article 6 of the Convention in this connection. She stressed that a delay at one stage of the proceedings should be taken into account when assessing the diligence in dealing with it at the following stage. She concluded by drawing the attention of the National Bureau of Investigation and the Office of the Prosecutor General (valtakunnansyyttäjänvirasto,riksåklagarämbetet) to her views on the matter.
According to the Government the receipt of one of the above-mentioned requests for international legal assistance had taken as long as some three years and five months. Attempts to expedite the proceedings were made by the Finnish authorities, apparently with no immediate effect.
On 5 March 2009 the public prosecutor filed charges against the applicant and a number of other suspects with the District Court (käräjäoikeus, tingsrätten), where the case is currently pending.
The applicant complained under Articles 6 and 13 of the Convention about the length of the criminal proceedings against him and the lack of an effective remedy in that connection.
The applicant complained under Article 6 of the Convention that the proceedings against him had been excessively lengthy. He also complained under Article 13 of the Convention about the lack of an effective remedy in that connection.
Article 6 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.”
1. The parties’ submissions
By a letter dated 29 June 2009 the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issues raised by the application.
The declaration provided as follows:
“Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes, in the special circumstances of the present case, to express by way of a unilateral declaration its acknowledgement that the length of the criminal proceedings has failed to fulfil the requirement of ‘reasonable’ referred to in Article 6 § 1 of the Convention and that there has not been available to the applicant such an effective domestic remedy as set out in Article 13.
Consequently, the Government is prepared to pay the applicant a total amount of EUR 9,900 (nine thousand nine hundred). The sum includes EUR 5,400 (five thousand four hundred) in compensation for non-pecuniary damage as well as EUR 4,500 (four thousand five hundred) for costs and expenses (inclusive of VAT). In the Government’s view, having regard to all the circumstances of the case and to your Court’s awards in comparable length of proceedings and effective remedy cases, the above total amount would constitute adequate redress for the excessive length of the criminal proceedings and the lack of an effective remedy in that connection.
The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
In the light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ‘any other reason’, as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike the application out of its list of cases.”
In a letter of 17 August 2009 the applicant expressed the view that the amount of compensation offered by the Government did not correspond to those awarded by the Court in similar cases. He thus opposed the Government’s suggestion to strike the application out of the Court’s list of cases and requested that the examination of the case be continued.
2. The Court’s assessment
The Court observes that both parties filed submissions with the Registry in the context of friendly-settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.
Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court points out that, under certain circumstances, it may be appropriate to strike out an application, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments and decisions in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX); Kalanyos and Others v. Romania (no. 57884/00, § 25, 26 April 2007); Viinikanoja v. Finland ((partial striking out), no. 20532/05, 6 January 2009); and Nevala v. Finland, ((partial striking out), no. 10391/06, 20 January 2009).
The Court notes that the Government’s declaration contains a clear acknowledgement that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 9,900 euros, constitutes adequate redress for the excessive length of the proceedings and the lack of an effective remedy in that connection, having regard to all the circumstances of the case and to its awards in comparable length of proceedings cases.
The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland, no. 25072/02, §§ 22-27, 31 May 2007; F. and M. v. Finland, no. 22508/02, §§ 48-53, 17 July 2007 and Ekholm v. Finland, no. 68050/01, §§ 62-66, 24 July 2007).
Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of the application, and finds no reasons which would require the further examination of the case (Article 37 § 1 in fine). Accordingly, it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President