v. FINLAND JUDGMENT
CASE OF JANATUINEN v. FINLAND
(Application no. 28552/05)
8 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Janatuinen v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“All recordings of telephone conversations pertaining to the offences in question have been included in the pre-trial investigation material available to the parties. Recordings not related to the matter were either destroyed at once or removed later. The threshold for including recordings to the case material has been low. In case of doubt as to whether a given recording was related to the matter or not, it has been attached to the case material. As far as the witness could recall, there had been 55 conversations between [the applicant] and [another defendant], of which 23 had been attached to the case material.”
The witness had also explained that the recordings gathered during the investigation had indeed disclosed a number of other dealings between the defendants concerning, inter alia, procuring and trading in cars and car parts.
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION CONCERNING THE DESTRUCTION OF RECORDINGS
Article 6 reads, in relevant parts, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
1. Submissions of the parties
2. The Court's assessment
II. THE REMAINDER OF THE APPLICATION
A. Alleged violations of Article 6 §§ 1, 2 and 3 of the Convention
B. Alleged violation of Article 13 of the Convention
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
75. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the application to the Court was examined under the joint procedure provided for under Article 29 § 3 of the Convention and that the application was only partly successful. Taking into account all the circumstances, the Court considers it reasonable to award the sum of EUR 1,900 (inclusive of value-added tax) for the proceedings before the Court.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,900 (one thousand nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Garlicki is annexed to this judgment.
CONCURRING OPINION OF JUDGE GARLICKI
While I am ready to accept that Article 6 § 1 of the Convention has been violated, I think that this case also merits discussion in the light of our case-law developed in respect of the protection of private life and correspondence (Article 8).
The finding of a violation in Janatuinen seems to be based on the fact that some recordings were destroyed prematurely and, in consequence, the applicant could not use them during his criminal trial.
It should not be forgotten, however, that prompt destruction of all “irrelevant” recordings is an established requirement under Article 8 of the Convention. Consequently, laws regulating electronic surveillance must provide for circumstances in which recordings must or may be erased or the tapes destroyed (Weber and Saravia, dec., § 95). The Finnish Coercive Measures Act established, in accordance with that requirement, an obligation to destroy recordings containing any information not related to the suspected offence.
In the Dumitru Popescu v. Romania judgment of 26 April 2007 (§ 78), while analysing Article 8 of the Convention, the Court observed that the fact that only some recordings had been included in the file presented to the trial court: “was not in itself incompatible with the requirements of Article 8. The Court can admit that in certain circumstances it may be excessive, if only from a practical point of view, to transcribe and include in a case investigation file all the conversations intercepted on a particular telephone line. It could certainly violate other rights, such as the right to respect for the private lives of other callers who made calls from a phone that was being tapped. The person concerned must nevertheless be given the possibility of listening to the recordings or challenging their accuracy, hence the need to keep them intact until the end of the criminal proceedings and, more generally, to include in the case file those elements he considers relevant to the defence of his interests”.
The Janatuinen case deserved, in my opinion, to be discussed in the light of those statements. It would not have stopped the Court from finding a violation: it seems that the violation in Janatuinen was due to the lack of an adequate procedural framework for the selection and destruction of recordings. The affected party or at least an independent authority (a judge or prosecutor) should be invited to decide what is not sufficiently relevant to be kept in the file. Those decisions should not be left to the discretion of the police or any other such service.
But, at the same time, it is of the utmost importance that all irrelevant material be destroyed with all possible speed. What may be irrelevant for the criminal trial may nevertheless be quite handy for underhand political accusations and leaks of information. The sad experience of many Convention countries shows that telephone recordings have been used in a manner incompatible with human dignity and political culture. Legislative measures providing for careful supervision of the relevance of the recorded materials should not be criticised without a full assessment of their protective effects in respect of people's privacy and integrity.