(Application no. 19235/03)
21 April 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 Marttinen v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 31 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The pre-trial investigation
B. The enforcement inquiry
C. The imposition of an administrative fine
1. The Helsinki District Court
2. The Helsinki Court of Appeal
“...the application of the right not to incriminate oneself [as provided for in the Convention] to the debt recovery procedure might hinder effective enforcement without cause. Given this and the above mentioned judgments of the Court, the Court of Appeal finds that the rights of a person charged guaranteed by Article 6 do not, as a starting point, apply to the debt recovery procedure, and the right of the person “charged” not to incriminate himself cannot be held as a valid reason not to be present in the enforcement inquiry or to refuse to answer the questions put to him in the inquiry. Furthermore, the Court of Appeal considers that nor can the Bailiff's right under Chapter 3, section 34(g), of the Enforcement Act (ulosottolaki, utsökningslagen) to give, under certain conditions, necessary information to other authorities as such be considered a valid reason for the refusal.
Therefore, the Court of Appeal finds that [the applicant] has not presented a valid reason, within the meaning of Chapter 3, section 40, of the Enforcement Act, not to fulfil his obligation, laid down by the same Chapter, section 33, to give information in the enforcement inquiry ....”
3. The Supreme Court
“Effective enforcement of decisions is part of a fair trial. In connection with the enforcement of financial claims, the debtor's obligation to contribute to the establishment of facts of relevance to the enforcement is of great importance. The concealing of property, the reporting of liabilities that are false [or based on a sham transaction], and the giving of other false or misleading information are established as criminal offences in Chapter 39, Articles 2-5, of the Penal Code. The purpose of the powers of enforcement authorities to oblige the debtor to provide an account of his property, and of the coercive means available to ensure compliance with this obligation, is to make enforcement more efficient. Although it is possible to impose a threat of a fine to secure compliance with the obligation to give the information requested in connection with the enforcement inquiry, and a sentence may be ordered on a person concealing information or giving false information, the debtor is not, when complying with his or her obligation to give information on his or her property for the purposes of enforcement, a person charged with a criminal offence within the meaning of Article 6 of the Convention, to whom the rights of the accused would apply.
The right of an accused to remain silent may exceptionally also have relevance in connection with an enforcement inquiry. It has relevance at least where it is apparent that the enforcement inquiry is carried out, contrary to the purpose of the Enforcement Act, for the purposes of obtaining evidence in support of a suspicion of a prior criminal offence. Even in such a case, however, the obligation of the debtor to contribute to the enforcement inquiry results in that he must be present in the enforcement inquiry and give in that connection such information required by law as has no relevance with regard to the suspicion regarding crime.
[The applicant] has argued that the sole purpose of the enforcement inquiry was to find evidence for the pending criminal investigation. In any event, when the pre-trial investigation and the criminal investigation concerned the same matters, or at least essentially the same matters, and the complainants in the suspected crime were the debtors in the debt recovery procedure, the information provided in the enforcement inquiry would be used as evidence in the criminal case.
[The applicant] had a considerable amount of debts subject to debt recovery. According to the Bailiff, the purpose of the enforcement inquiry was to establish whether [the applicant] had such assets as could be used for the payment of debts, and not to obtain information for the purposes of the pending criminal investigation. It cannot be concluded on the basis of the facts stated by [the applicant] alone that the enforcement inquiry would have been requested for a purpose other than within the meaning of the Enforcement Act. As [the applicant] has refused completely to contribute to the enforcement inquiry, it is not possible to assess whether he would have had the right, on account of the said suspicion of a criminal offence, to refuse to provide some of the information. Nor is it possible to decide in this case to what extent the facts established in connection with the enforcement inquiry can be used as evidence in eventual court proceedings concerning a prior criminal offence.
[The applicant] has refused completely to contribute to the enforcement inquiry and has failed to be present. In doing so, he has not complied with his obligation imposed under the threat of a fine. He has not shown the existence of a valid reason for his refusal. He may thus be ordered to pay a fine. No reasons have emerged to reduce the fine imposed by the Court of Appeal.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.”
“Section 33 (Act no. 470/1986)
For the purpose of obtaining the necessary information for enforcement, the Bailiff may carry out an enforcement inquiry. In the enforcement inquiry, the debtor must provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He must also give information about the whereabouts of an object or a document regarding which he by a judgment has been ordered to give to another person or which by law has to be given to the enforcement authority.
In the enforcement inquiry, the debtor must provide such information as is necessary to establish whether property disposed of and related transactions can be recovered for the purposes of enforcement.
Where requested by the Bailiff the debtor shall in the enforcement inquiry prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor.
Section 34 (Act no. 470/1986)
The debtor must, where invited by the Bailiff, appear in person in the office of the Bailiff of his or her place of residence or stay for the purpose of an enforcement inquiry. Where the debtor fails to appear and there is probable reason to believe that he or she intends to evade enforcement, the police shall on the Bailiff's written request bring him or her to the enforcement inquiry.
Section 34(a) (Act no. 470/1986)
If the debtor is under an obligation to keep accounts, he or she must produce the accounts and related materials to be audited on the Bailiff's request for the purpose of obtaining the necessary information for enforcement.
Section 34(c) (Act no. 470/1986)
Before the enforcement inquiry, the debtor or his or her representative referred to in section 34(b) must be informed of sanctions that may be imposed on him or her in the case of a failure to provide information or provision of incorrect information. ...
Section 34(d) (Act no. 792/1996)
If the debtor or his or her representative referred to in section 34(b) fails to comply with his or her obligations under sections 33 or 34(a), the Bailiff may order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. The administrative fine is imposed and ordered to be paid in accordance with sections 39 to 41. ...
Section 34(e) (Act no. 171/1997)
For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case a third person must notwithstanding the provisions on secrecy on request by the Bailiff provide information on:
1. whether or not he has in his possession or otherwise in his control assets belonging to the debtor and the nature of the assets;
2. whether the debtor has an outstanding account from him, the basis for it and its amount;
3. whether he and the debtor have entered into an agreement or arrangement which may be of relevance in the search for recoverable assets of the debtor and the closer content of the agreement or arrangement; and
4. data concerning the debtor's employment and salary as well as address and telephone number which he has in his capacity of the debtor's employer.
Any legal provision in another act about the Bailiff's right to receive information notwithstanding the secrecy obligation must be complied with.
The Bailiff has the right to receive the information mentioned in subsections 1 and 2 free of charge. This does not concern information provided by means of automatic data processing.
If the third party refuses to give information requested and mentioned in subsections 1 and 2, the Bailiff may order him to produce it within a given time on pain of an administrative fine. The fine is issued and payment of it is ordered in accordance with sections 39-41.
Section 34(f) (Act no. 171/1997)
For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case an authority, a corporation having a public function and a company attending to telecommunications or postal activity must notwithstanding the provisions on secrecy and in addition to the information mentioned in section 34(e) on request by the Bailiff provide information on:
1. the debtor's income and property;
2. the debtor's employment or service relationships and pensions;
3. the debtor's address and telephone number as well as other contact information;
In the acquisition of the information mentioned in subsections 1 and 2, it must be seen to that sensitive personal information not relating to the handling of the debt recovery case is not delivered to the Bailiff.
Any legal provision in another act about the Bailiff's right to receive information notwithstanding the secrecy obligation must be complied with.
The Bailiff has the right to receive the information mentioned in subsections 1 and 3 free of charge. This does not concern information provided by means of automatic data processing.
Section 34(g) (Act no. 649/1999)
Notwithstanding the secrecy obligation provided for in the Openness of Government Activities Act, the Bailiff may disclose necessary information to another enforcement authority and, if there is reason to believe that a debtor may have committed an offence, to the prosecuting and investigative authorities. The Bailiff may also give information to the prosecuting authority for the purpose of consideration of conversion imprisonment for non-payment of fines. In addition, the Bailiff may give necessary information about the debtor's observed malpractice to the tax authority, labour authority, bankruptcy ombudsman or other authority. However, information on misconduct by a debtor received from a person who, in court proceedings, would have the right or obligation to refuse to testify on the facts in question, as well as information received from a third person concerning his or her own misconduct may not be disclosed by the Bailiff.
Section 40 (Act no. 792/1996)
... Payment of the administrative fine is ordered if the obligations have not been fulfilled or have been contravened without a valid reason. ...
Section 41 (Act no. 792/1996)
Prior to issuing an administrative fine, the Bailiff must afford the debtor an opportunity to be heard in a proper manner, unless the enforcement is thereby substantially impeded. ...”
“[...] A party, his/her representative or counsel must not disclose to third parties secret information obtained by virtue of party status and concerning other persons than the party himself.
A person referred to above in paragraph (1) or (2) must not use secret information for personal benefit or the benefit of another, nor to the detriment of another. However, a party, his/her representative and counsel may use information concerning a person other than the party himself/herself, where the matter concerns the right, interest or obligation on which the access of the party to the information is based.”
“The Bailiff must not disclose information which has to an essential extent been received from:
1) a person who as a witness in the proceedings has an obligation or a right to refuse to testify on the fact in question, unless this person gives his consent to the disclosure of the information;
2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges on the debtor; or
3) a third person, if the information concerns misconduct by this third person.
The right of the Bailiff to disclose information to a creditor is provided for in Chapter 3, section 91. The foregoing provisions apply irrespective of whether the information would otherwise be confidential.”
“The Bailiff must without delay inform the creditor applying for enforcement, if they are evidently relevant having regard to the size of the claim, of circumstances perceived by him which may give rise to the need to institute recovery proceedings, to apply for bankruptcy or to another similar special measure in order to collect the claim. The creditor must also receive the minutes from a possible enforcement inquiry and other necessary documents. The Bailiff may also provide information mentioned in section 73(1), point 1 and 2. The creditor applying for enforcement must not use this information in order to circumvent the provisions on testimony in the Code of Judicial Procedure or in order to have the debtor charged with a criminal offence. The Bailiff must remind the creditor of the said restrictions.”
B. Supreme Court practice
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Article 6 § 1 reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties' submissions
2. The Court's assessment
A. Applicability of Article 6 of the Convention
B. Compliance with Article 6 § 1 of the Convention
II. 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
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 EUR 12,000 (twelve thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 21 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza