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NOUSIAINEN v. FINLAND - 45952/08 [2010] ECHR 233 (23 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/233.html
Cite as:
[2010] ECHR 233
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FOURTH
SECTION
CASE OF NOUSIAINEN v. FINLAND
(Application
no. 45952/08)
JUDGMENT
STRASBOURG
23
February 2010
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 Nousiainen 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 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 45952/08) 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 two Finnish nationals, Mr Toivo Pekka Nousiainen (“the first
applicant”) and Mr Veli-Pekka Nousiainen (“the second
applicant”), on 22 September 2008.
The
applicants were represented by Mr Harri Nevala, a lawyer practising
in Oulu. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
On
14 May 2009 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1931 and 1958 and live in Oulu and Espoo
respectively.
The
applicants are father and son. On 17 June 2000 they were involved in
an incident in which the first applicant was attacked by a group of
men. The second applicant went to his rescue. They both sustained
injuries and the second applicant's camera and mobile phone were
broken.
The
applicants filed a criminal complaint with the police on that same
date. On the following day, one of the alleged attackers filed a
criminal complaint against the second applicant alleging that he had
kicked and hit him during the incident.
On
19 June 2000 the police questioned the second applicant as an injured
party. He then informed the police that he would make a claim for
damages in the court proceedings. At the end of the interview the
police took a brief statement from the second applicant in respect of
the criminal complaint filed against him. He did not contest the
alleged conduct but maintained that it had been justified.
On
6 July 2000 the police questioned the first applicant as an injured
party. He also informed the police about his intention to make a
claim for damages in the court proceedings.
On
19 March 2003 the second applicant was again questioned by the
police. He was first heard as a suspect and then as a victim.
On
8 July 2003 the public prosecutor filed an application for a summons
with the Iisalmi District Court (käräjäoikeus,
tingsrätten). Charges were brought against two persons, L.
and R., for robbery. R. was also charged with having physically
assaulted the second applicant. The second applicant, for his part,
was charged with having physically assaulted L. The applicants later
joined the charges as far as they were the alleged victims.
On
23 September 2003 the first applicant submitted to the court a
specified claim for damages. Apparently the second applicant also
filed such a claim prior to the trial.
On
4 May 2005 the District Court held an oral hearing during which it
received witness testimonies and written evidence.
On
1 June 2005 the court issued its judgment. It found that L. and R.
had used physical violence against the first applicant. They were
convicted of assault and sentenced to a fine respectively. They were
also ordered to pay the first applicant some EUR 400 in damages
and the second applicant EUR 300 for the camera. The court further
found that the second applicant had physically assaulted L. for the
purpose of defending his father. As he had used more violence than
had been necessary in the circumstances, he was convicted of assault
and sentenced to a 30 days' conditional prison term. He was also
ordered to pay damages to L. The court dismissed the charge
concerning the alleged assault against the second applicant for lack
of evidence.
Both
applicants appealed against the judgment to the Itä-Suomi Court
of Appeal (hovioikeus, hovrätten) renewing their initial
claims regarding punishment and damages, in so far as they had been
rejected by the District Court. The second applicant also requested
that he be acquitted or, in the alternative, exempted from punishment
and liability in damages. On 18 September 2007, having held
an oral hearing, the court came to the same conclusion as the
District Court. It upheld the lower court's judgment giving some
further reasons of its own.
On
11 April 2008 the Supreme Court (korkein oikeus, högsta
domstolen) refused the applicants leave to appeal.
II. RELEVANT DOMESTIC LAW
AND PRACTICE
Chapter
3, section 1 of the Criminal Procedure Act (laki oikeudenkäynnistä
rikosasioissa, lag om rättegång i brottmål,
Act no. 689/1997) provides that a civil claim arising out
of the offence for which a charge has been brought may be heard in
connection with the charge. If such a claim is made separately, the
provisions on civil procedure apply. Chapter 3, section 9 (1)
stipulates that if charges are brought by a public prosecutor, that
authority shall also pursue a related claim for damages, if the
injured party so requests. The prosecutor may refuse the request only
for reasons specified in the Act. Chapter 3, section 10 (1) further
provides that if the injured party has during the pre-trial
investigation or otherwise notified the prosecutor that he or she
wishes to pursue a civil claim arising out of the offence, or if the
prosecutor has refused to present that claim, the injured party is to
be afforded an opportunity to submit his or her claim in writing to
the court.
It
is common practice that the injured party pursues a claim for damages
in the criminal proceedings instead of instituting separate civil
proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants 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 his civil rights and
obligations or any criminal charge against him, everyone is entitled
to a ... hearing within a reasonable time by [a] ... tribunal...”
The
Government contested that argument. They submitted that the
proceedings began, in respect of both applicants, on 17 June 2000
when they filed a criminal complaint with the police and that the
proceedings thus lasted nearly seven years and ten months. However,
there were considerable delays in the proceedings, which were not
attributable to the State.
The
Court does not share the Government's opinion as to the date which
marks the beginning of the period to be taken into consideration. The
Court notes that at the time of filing the criminal complaint, the
applicants did not make any claims for compensation. It was only when
they were respectively questioned during the pre-trial investigation
that they informed the police of their intention to pursue a civil
claim against the attackers in the subsequent criminal proceedings.
As regards the first applicant that date was 6 July 2000. As to the
second applicant that date was 19 June 2000, when he was also first
questioned as a suspect. The Court would also note that even though
the first applicant did not submit a specified claim for damages to
the District Court until 23 September 2003, he did not have any means
of speeding up the pre-trial investigation, the consideration of
charges or the court proceedings prior to the date when that court
asked him to submit his civil claims, in accordance with Chapter 3,
section 10 (1) of the Criminal Procedure Act. The Court also observes
that it is common practice in Finland to pursue civil claims in the
context of criminal proceedings instead of instituting separate civil
proceedings (see paragraphs 16 and 17 above).
The
Court notes that the proceedings ended, in respect of both
applicants, on 11 April 2008, when the Supreme Court
refused leave to appeal. They thus lasted seven years, nine months
and seven days and seven years, nine months and 24 days,
respectively, for three levels of jurisdiction.
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999 II and Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
The
Government argued that the second applicant was responsible for a
delay of almost three years and ten months in the proceedings.
Firstly, during the pre-trial investigation the police had had
difficulties in reaching the second applicant after his first
questioning on 19 June 2000. They had visited his home in Lapinlahti
several times using different means, but the second applicant could
not be found. His whereabouts had been unknown even to his parents.
He had not been reached until 19 March 2003 for further
questioning. Secondly, the second applicant had delayed the District
Court proceedings by causing the cancellation of the court's oral
hearing on four occasions between 15 January 2004 and 1 February
2005. On the first three occasions the applicant had failed to appear
in the hearing claiming that he was ill. On the last mentioned date
the hearing had been cancelled because the court had been unable to
serve the summons on the second applicant. A certificate of
impediment dated by the bailiff on 31 January 2005 showed
that the applicant had also been evading that authority at the time.
The Government further submitted that the Court of Appeal had held an
oral hearing on request of the applicants. In the appellate
proceedings one of the applicants had presented a fresh piece of
evidence. Also, the counsel of one of the applicants had been changed
during those proceedings.
The
applicants contested the Government's arguments. The second applicant
submitted that his permanent residence had been in Espoo, as stated
in the pre-trial investigation reports, even though he had worked for
some four months in Lapinlahti after the first police questioning. He
also denied having been responsible for any of the delay in the court
proceedings.
The
Court observes that the alleged attempts by the police to reach the
applicant for further questioning and the grounds for the
cancellation of the District Court's oral hearing cannot be verified
from the documents submitted by the applicant. The Government have
failed to submit any further documentary evidence in support of their
arguments. Thus, the Court is unable to assess whether the police, in
fact, resorted to all available measures, to a sufficient degree, in
their attempts to find the second applicant. The Government have not
claimed that the police had tried to reach the second applicant at
his permanent address in Espoo. The Government's contention that the
second applicant's parents had been in the dark as to his whereabouts
is also unsubstantiated. Further, in view of the lack of any
documentary evidence, the Court is unable to verify whether the
District Court, in cancelling the first three hearings mentioned in
paragraph 24 above, had considered that the second applicant had a
legitimate reason for not appearing before the court. Even assuming
that the applicant had deliberately evaded the oral hearing set for 1
February 2005, that had not delayed the proceedings to a significant
degree. The Government have not alleged that the first applicant was
responsible for any of the delay in the proceedings at this stage.
Therefore, the Court cannot but conclude that no major delay prior to
the appellate proceedings was attributable to the applicants.
As
to the Government's explanation for the length of the proceedings
before the Court of Appeal, the Court does not find it convincing
either. The case was very simple and the submission of one fresh
piece of evidence and the change of counsel could hardly explain the
total length of more than two years before that court. The Court
further notes that it does not transpire from the documents whether
the oral hearing at the appellate stage was requested by other
parties as well, and not solely by the applicants.
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 and Frydlender,
both 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. 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
first applicant claimed 3,500 euros (EUR) and the second applicant
EUR 4,500 in respect of non-pecuniary damage.
The
Government contested these claims considering them excessive as to
quantum. Any award should not exceed EUR 1,500.
The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards each applicant EUR
3,000 under that head.
B. Costs and expenses
The
applicants also claimed, jointly, EUR 1,976.40 for the costs and
expenses incurred before the Court.
The
Government contested the claim. Any award under this head should not
exceed EUR 1,600.
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 (inclusive of value-added tax) 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 in respect of both applicants;
Holds
(a) that
the respondent State is to pay the applicants, 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 3,000 (three thousand euros) to each applicant, plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 1,976.40 (one thousand nine hundred and seventy-six euros and
forty cents), plus any tax that may be chargeable to the applicants,
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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
