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TAAVITSAINEN v. FINLAND - 25597/07 [2009] ECHR 2018 (8 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2018.html
Cite as:
[2009] ECHR 2018
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FOURTH
SECTION
CASE OF TAAVITSAINEN v. FINLAND
(Application
no. 25597/07)
JUDGMENT
STRASBOURG
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 Taavitsainen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
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:
PROCEDURE
The
case originated in an application
(no. 25597/07) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Finnish national, Ms Sirpa
Marita Taavitsainen (“the applicant”), on 13 June 2007.
The
applicant was represented by Mr Jaakko Tuutti, a lawyer practising in
Tampere. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
On
10 November 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
The
applicant was born in 1971 and lives in Tampere.
I. THE CIRCUMSTANCES OF THE CASE
On
16 June 2001 the police searched the applicant's apartment on account
of a suspicion that it had been used for procuring. On 26 June 2001
she was questioned as a suspect. On 11 August 2001 the pre-trial
investigation was completed.
On
23 August 2001 the public prosecutor preferred charges against the
applicant for procuring, allegedly committed during the period from 4
to 11 June 2001.
On
an unspecified date the applicant was summoned to appear before the
Tampere District Court (käräjäoikeus, tingsrätten)
at a hearing which was to take place on 6 March 2002.
However,
the hearing was cancelled owing to the fact that Ms H., a witness,
had failed to appear before the court although lawfully summoned to
do so. Another witness, Ms M., had not been summoned. Both witnesses
were Estonian citizens. The hearing of the case was postponed until
12 August 2002 and Ms H. was summoned to appear before the court
on pain of a fine of 650 euros (EUR).
On
12 August 2002 the District Court noted that the above-mentioned
witnesses had failed to appear before it although lawfully summoned.
The court adjourned the case until 11 December 2002 and decided to
summon the witnesses on pain of a fine of EUR 800 each.
On
11 December 2002 the District Court noted that the witnesses had not
been summoned, postponed the hearing of the case until 1 December
2003 and decided that the witnesses should be summoned to appear
before it on pain of a fine of EUR 800 each. The court also issued
warrants for their arrest.
On
1 December 2003 the District Court again noted that the witnesses had
not been summoned, adjourned the case until 26 May 2004 and decided
that the witnesses should be summoned to appear on pain of a fine of
EUR 800 each. The court also issued warrants for their arrest.
On
26 May 2004 the District court noted that Ms M. had not been summoned
and that Ms H. had been summoned but failed to appear. It postponed
the hearing of the case until 8 December 2004, issued warrants for
their arrest and decided that they should be brought to court.
On
8 December 2004 the District Court noted that the witnesses had not
been found. The case was adjourned until further notice.
According
to the Government, seven more attempts were made by the District
Court to hold an oral hearing between 2005 and 2008. These attempts
proved unsuccessful, as the witnesses could not be brought before the
court in Finland.
In
January 2008 the District Court contacted the Finnish liaison
prosecutor in Estonia to explore the possibility of arranging the
hearing of the witnesses through a video link.
In
the autumn of 2008 the District Court received video-conferencing
equipment. On 9 January 2009 the District Court issued a request for
international legal assistance to Estonia to have the hearing by
video link arranged.
On
23 February 2009 the District Court held its oral hearing. The
applicant argued that the proceedings had exceeded a reasonable time
and were thus in breach of the Convention. In consequence, the
charges against her should be dismissed. The court rejected the
applicant's argument. It acknowledged that the proceedings had been
delayed but noted that the delay had resulted from the unsuccessful
attempts to bring the crucial witnesses before the court. It was only
after the Tampere District Court was provided with video-conferencing
equipment that the hearing could be held and the court was able to
receive testimony from the witnesses in their own country.
On
3 March 2009 the District Court gave its judgment. It found that,
between 4 and 11 June 2001, the applicant had provided an
apartment for the practice of prostitution for two women and gained
from that arrangement. It convicted the applicant of procuring and
sentenced her to 30 unit fines. It also ordered her to pay the State
1,681.87 euros (EUR) representing the proceeds of the offence.
In
assessing the gravity of the offence the court noted that the two
women who had occupied the applicant's apartment had not been
controlled by her, but had provided sexual services of their own free
will. The court again acknowledged the excessive length of the
proceedings, noting that it was not attributable to the applicant.
Relying on Chapter 6, Article 7 of the Penal Code (rikoslaki,
strafflagen) it stated that she was entitled to redress for the
delay, which could be awarded either by choosing a more lenient type
of punishment or by reducing the sentence. The court went on to state
that the applicant had been found guilty of fairly small-scale
unorganised procuring. It also took into account the short period of
time over which the offence had been committed and the small amount
of proceeds obtained. For those reasons, and due to the length of the
proceedings, the court concluded that the applicant should be
sentenced to a fine. The court also took into account the delay in
the proceedings in the amount of the unit fines, without specifying
the reduction in the sentence.
No
appeals were filed with the Court of Appeal (hovioikeus,
hovrätten) and the judgment gained legal force on 11 March
2009.
II. RELEVANT DOMESTIC LAW
Chapter
6, Article 7 of the Penal Code, as amended by Act No. 515/2003,
which took effect on 1 January 2004, reads in relevant parts:
“In addition to what is provided above in Article
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.”
The
sanction for procuring provided by the Penal Code runs from one unit
fine to three years' imprisonment (Chapter 2a, Article 1(1) and
Chapter 20, Article 9 (1)).
Chapter
17, Article 34a of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken), as
amended by Act no. 360/2003, which came into force on 1 October 2003,
provides the following:
“A witness...may be heard in the oral hearing
without his or her appearance in person with the use of a video
conference of other appropriate technical means of communication,
where the persons participating in the hearing have an audio and
video link with one another, if the court deems that this is suitable
and:
1) the person to be heard cannot, due to illness or
another reason, appear in person in the oral hearing, or his or her
personal appearance in proportion to the significance of the
testimony would cause unreasonable costs or unreasonable
inconvenience;
2) the credibility of the statement of the person to be
heard can be reliably assessed without his or her personal appearance
at the oral hearing;
3) the procedure is necessary in order to protect the
person to be heard or a person related to him or her in the manner
referred to in Chapter 15, Article 10 (2) of the Penal Code, from a
threat directed at life or health; or
4) the person to be heard has not reached the age of 15
years or he or she is mentally incapacitated.
A party shall be given an opportunity to put questions
to the person being heard.
In the cases referred to above in points 1 and 2 of
paragraph 1, however, a telephone may also be used at the hearing.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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 contested that argument.
The
period to be taken into consideration began on 16 June 2001 when the
police searched the applicant's apartment and ended on 3 March 2009
when the District Court gave its judgment. It thus lasted seven
years, eight months and 18 days for one level of jurisdiction.
A. Admissibility
The
Government argued, firstly, that the applicant had received
sufficient redress in that the District Court essentially mitigated
the sentence due to the length factor, as provided by Chapter 6,
Article 7 of the Penal Code. The court acknowledged the delay in the
proceedings and stated that it was not attributable to the applicant.
It followed that the applicant could no longer claim to be victim of
the alleged breach of the “reasonable time” requirement.
Secondly, the Government argued that the applicant failed to make use
of the domestic remedies in that she did not appeal against the
District Court's judgment. The Government concluded that, in any
case, the application was manifestly ill-founded as the delay in the
proceedings was not attributable to the State.
The
applicant pointed out that the punishment for procuring ranged from
one unit fine to three years' imprisonment. The District Court had
relied on several factors, favourable to the applicant, when fixing
her sentence. The length factor did not stand out as the decisive
factor in that respect. The sentence imposed on the applicant, 30
unit fines, might well have been an appropriate punishment for the
offence in question, even excluding the mitigation. As the reduction
in the sentence had not been made in a clear and measurable manner,
the applicant had not lost her victim status. The applicant further
contested the Government's other arguments.
The
Court points out that the mitigation of a sentence on the ground of
the excessive length of proceedings does not in principle deprive the
individual concerned of his or her 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 and Cocchiarella
v. Italy [GC], no. 64886/01, § 77, ECHR 2006-...).
In
the present case, while it is true that the District Court stated
that it was taking into account the length of proceedings in reducing
the applicant's sentence, it is not apparent from its judgment what
this reduction was. As the applicant pointed out, the District Court
relied on several factors when fixing her sentence. It is clear from
that court's reasoning that the applicant's offence was not
considered grave. In the absence of any information from the
Government on comparable sentencing practices (compare and contrast
Beck v. Norway, cited above, §§ 17 and 28), the
Court cannot but subscribe to the applicant's view that the
appropriate punishment in her case might well have been at the lower
end of the sentencing scale, even excluding the length factor.
The
Court acknowledges the attempt by the District Court to comply with
the requirements of Article 6 § 1 of the Convention by affording
the applicant redress for the excessive length of the proceedings. It
is not, however, satisfied that the reduction of the sentence was
measurable and had a decisive impact on the applicant's sentence. The
Court thus finds that the applicant may still claim to be a victim.
As
to the Government's argument concerning the alleged failure by the
applicant to exhaust domestic remedies, the Court considers it
appropriate to examine that issue in connection with the complaint
concerning the alleged violation of Article 13 of the Convention.
Having
regard to the above, the Court notes that the complaint concerning
the length of the proceedings is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
The
Government contended that the delay in the proceedings did not result
from any inactivity of the District Court but rather from the failure
of the witnesses to appear before that court. Several attempts were
made to bring the witnesses to the hearing, but they proved
unsuccessful. As the witnesses were citizens of another State, the
court was not able to use coercive measures against them. The hearing
could only be arranged after the court was provided with
video-conferencing equipment and the witnesses were able to give
testimony in their own country. The hearing of those witnesses
constituted crucial evidence in the case.
The
applicant contested the Government's view. If the video-conferencing
equipment was the only effective means for the successful handling of
cases with international connections, it should be asked why the
State did not provide the court with such equipment sooner.
The
Court finds the applicant's argument justified. It acknowledges the
difficulty for the District Court to obtain the attendance of the two
witnesses in the absence of the possibility to use coercive measures
against them, both being foreign nationals. However, having regard to
the District Court's reasoning, as summarised in paragraph 17 above,
it seems that the only obstacle to the hearing of those witnesses by
means of video conferencing was the lack of suitable equipment. The
Court observes that the provision enabling the hearing of a witness
by such means came into force on 1 October 2003. Yet the State did
not provide the Tampere District Court with video-conferencing
equipment until autumn 2008 thus, in practice, hindering the
application of the above-mentioned provision. The Government have not
claimed that there was any other impediment to the hearing of the
witnesses via video link, such as lack of co-operation by the
Estonian authorities or suitable video-conferencing equipment in that
country. On the contrary, it appears that the Estonian authorities
acceded to the District Court's request for international legal
assistance once it was made, without delay. The Court thus finds that
the delay in the proceedings at hand is attributable to the State.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also complained that there was no effective remedy at her
disposal for her length complaint. She relied on Article 13 of the
Convention, which 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.”
The
Government contested that argument.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
As
the Court has held on many occasions, Article 13 of the Convention
guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they may happen to be secured in the domestic legal order. The effect
of Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief. The scope of
the Contracting States' obligations under Article 13 varies depending
on the nature of the applicant's complaint; however, the remedy
required by Article 13 must be “effective” in practice as
well as in law (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, § 157, ECHR 2000-XI and Cocchiarella v.
Italy [GC], cited above, §§ 74-79, ECHR 2006-...).
The
Court reiterates that, under Finnish law, the applicant was at no
stage of the proceedings 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], no. 36813/97,
§ 186, ECHR 2006 ). Moreover, given the uncertainty of
whether the appellate court would eventually apply Chapter 6, Article
7 of the Penal Code and mitigate the sentence on the ground of the
excessive length of the proceedings, to the extent of providing
sufficient redress, the Court finds that the defendant cannot be
expected to appeal against a lower court's judgment solely for that
purpose. The remedy suggested by the Government also appears illusory
in a situation where the proceedings have already exceeded a
reasonable time. The Government have failed to substantiate the
existence of any remedy whereby the applicant could have obtained
redress for her complaint.
It
follows that the applicant did not have an effective remedy in the
present case. There has thus been a breach of Article 13 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested the claim submitting that any compensation under
that head should not exceed EUR 2,000.
The
Court considers that it should award the full sum claimed.
B. Costs and expenses
The
applicant also claimed EUR 2,305.80 (inclusive of value-added tax)
for the costs and expenses incurred before the Court.
The
Government contested the claim. Any award should not exceed EUR
1,400.
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, regard being had to
the documents in its possession and the above criteria, the Court
considers that the sum claimed should be awarded in full.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention in that connection;
Holds
(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 5,000 (five thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 2,305.80 (two thousand three hundred and five euros and eighty
cents), 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
Registrar President
