by Hannu LINDHOLM and Jarkko VENÄLÄINEN
The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Ledi Bianku, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 29 January 2008,
Having regard to the observations and declaration submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the fact that Judge Päivi Hirvelä, the judge elected in respect of Finland, withdrew from sitting in the case (Rule 28 of the Rules of Court) and that on 9 June 2009 the Government informed the Court that they had appointed Mr Rait Maruste, the judge elected in respect of Estonia, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1),
Having deliberated, decides as follows:
The applicants, Mr Hannu Lindholm and Mr Jarkko Venäläinen, are Finnish nationals who were born in 1960 and 1971 and live in Jämsänkoski and Helsinki respectively. They were represented before the Court by Mr Atte Niemi, a lawyer practising in Lahti. 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 15 May 2000 the applicants were detained by the police on suspicion of involvement in the drugs trade. They were released on 7 August 2000. On 10 May 2001 the police closed the pre-trial investigation.
On 9 May 2005 the public prosecutor brought charges against the applicants and a third person in the Kotka District Court (käräjäoikeus, tingsrätt).
The evidence presented to the court consisted mainly of information obtained through telephone surveillance. The court also received testimony from all three defendants and five witnesses. In his closing statement the prosecutor acknowledged that there had been a delay in the proceedings and expressed his view that the applicants, who were not responsible for that delay, were entitled to redress in the form of mitigation of their sentences. He suggested that a reduction by one third of otherwise appropriate sentences might constitute adequate redress.
On 16 June 2006 the court issued its judgment. It convicted both applicants of an aggravated drugs offence and the second applicant also of a weapons offence. It sentenced the applicants to two years and six months’ and one year and three months’ imprisonment respectively.
As to sentencing, the court referred to Chapter 6, Article 7 of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 515/2003) which provided for the possibility to mitigate a sentence, inter alia, on the ground of the considerable time which had elapsed since the commission of the offence. It also noted section 21 (1) of the Constitution of Finland (perustuslaki, grundlag; Act no. 731/1999), which guaranteed everyone the right to have his or her case examined before a public authority without undue delay. Furthermore, the court referred to Article 6 § 1 of the Convention, which guaranteed everyone the right to a trial within a reasonable time, and the European Court’s jurisprudence in that connection. The court observed that some six years had elapsed since the defendants were first affected by the suspicions against them. According to the court, that period of time was not attributable to the defendants. Nor was the case particularly complex or the case material extensive.
The District Court’s reasoning did not indicate how the above considerations affected the sentences imposed on the applicants. The court did, however, expressly refrain from imprisoning the applicants immediately, a possibility provided for in the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987), finding this unreasonable due to the excessive length of the proceedings.
The applicants appealed against the judgment to the Kouvola Court of Appeal (hovioikeus, hovrätt) maintaining, inter alia, that the length of the proceedings had been excessive and that the reduction in sentencing had not been sufficient.
On 1 August 2007, having held an oral hearing, the Court of Appeal issued its judgment. It amended the time of commission of the offence in respect of the second applicant and upheld the remainder of the District Court’s judgment in so far as both applicants were concerned. As to sentencing, the Court of Appeal took into account the seriousness of the offences on the one hand and the District Court’s reasoning concerning the mitigating factors on the other, finding that there was no reason to reduce the sentences further.
Both applicants sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). Regarding sentencing, the first applicant claimed that the length of the proceedings should be taken into account in a more clear and measurable manner and the reduction should be more substantial. The second applicant maintained that even though the District Court had referred to Article 6 § 1 of the Convention, that was not reflected in the sentence.
On 19 December 2007 the Supreme Court refused leave to appeal.
The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings was incompatible with the “reasonable time” requirement. The courts failed to afford the applicants adequate redress in a clear and measurable manner.
Article 6 § 1 of the Convention reads in relevant parts:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Both parties submitted observations as to the admissibility and merits of the application. The Government contested the applicants’ victim status and claimed that the application should be declared inadmissible. In the context of their further observations the Government submitted a unilateral declaration, and requested that it be taken into account should the Court have a different opinion of the Government’s preliminary objection.
A. The Government’s argument concerning lack of victim status
The Government argued that the applicants had been afforded adequate redress for the excessive length of the proceedings in that the District Court had reduced their respective sentences. It followed that they could no longer claim to be victims of the alleged violation of Article 6 § 1 of the Convention.
The applicants contested the Government’s argument.
The Court observes that the District Court clearly acknowledged the excessive length of the proceedings. However, while it is true that the District Court stated that it was taking into account the length of proceedings in reducing the applicants’ respective sentences, it is not apparent from its judgment what that reduction was. Thus, the Court cannot be satisfied that any reduction of the sentences was made in a clear and measurable manner, in accordance with the requirements of Article 6 § 1 of the Convention (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-...). It follows that the applicants may still claim to be victims.
B. The Government’s request to strike out the application
1. The parties’ submissions
By letter dated 6 May 2009 the Government informed the Court of the following unilateral declaration, signed on the same date:
“The Government wishes to express – by way of a unilateral declaration – its acknowledgement that, in the special circumstances of the present case, the length of the criminal proceedings have failed to fulfil the requirement of ”reasonable” within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government is prepared to pay the applicants in compensation a total sum of EUR 5,700 (five thousand seven hundred euros). This sum includes EUR 4,200 for non-pecuniary damage and EUR 1,500 for costs and expenses (inclusive of VAT). In the Government’s view, the aforementioned total sum would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings, and thus constitute an acceptable sum as to quantum in the present case.
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 a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the 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 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 29 May 2009 the applicants objected to the Government’s request to strike the application out of the list of cases and requested that its examination be continued. As to the compensation offered by the Government, the applicants considered it insufficient.
2. The Court’s assessment
The Court notes that no friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court) were conducted prior to the Government’s unilateral declaration.
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 in the instant case 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); and Wawrzynowicz v. Poland, (no. 73192/01, § 32, 17 July 2007).
The Court has dismissed the Government’s contention that the applicants can no longer be considered victims of a breach of Article 6 § 1 of the Convention. However, it considers that even if the applicants’ sentences were not reduced in a clear and measurable manner, as required by the case-law on victim status (see above), it is highly probable in view of the District Court’s reasoning that some form of reduction was in fact made when sentencing the applicants. Bearing that in mind, and having regard to the other circumstances of the case, the Court finds that the sum offered to the applicants by the Government in compensation for non-pecuniary damage and costs and expenses, that is EUR 5,700, constitutes adequate redress for the excessive length of the proceedings. Moreover, the Court notes that the Government’s declaration contains a clear acknowledgment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention.
Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President