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FOURTH
SECTION
CASE OF NIEMINEN v. FINLAND
(Application
no. 16385/07)
JUDGMENT
STRASBOURG
3
November 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 Nieminen v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16385/07) 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 Mr Ari Nieminen, (“the
applicant”), on 10 April 2007.
- The
Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
- On
19 January 2009 the
President of the Fourth Section decided to communicate the complaint
concerning the length of the proceedings 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Lahti.
- On
12 October 2000 the applicant was questioned by the police as a
suspect in a number of aggravated narcotics offences which had
allegedly been committed on 10 December 1999. The offences had been
reported to the police on 5 October 2000. The pre-trial investigation
was completed on 21 March 2001.
- The
case was examined and decided by the District Court (käräjäoikeus,
tingsrätten) with regard to some of the defendants in
May 2001. The charges against the applicant and one other person
were removed from the docket for the time being at the public
prosecutor's request because H., a witness, had not been located to
appear in court.
- On
15 April 2002 the public prosecutor preferred charges against the
applicant and the other remaining defendant.
- On
15 February 2004 H. was summoned to appear before the court on 12 May
2004. That hearing was cancelled as H. was in prison awaiting trial
in Sweden. The hearing eventually took place on 11 August 2004.
During the hearing H. refused to elaborate on the matter and his
pre-trial records were read out to the court.
- On
the same date the District Court convicted the applicant as charged
and sentenced him to six months' imprisonment. In its judgment the
court stated, in reply to the complaint made by the applicant's
co-defendant, that when assessed as a whole, the proceedings had
lasted longer than usual. However, the delay had been attributable to
the legal excuse of a witness, which had prevented the case from
being finalised earlier.
- On
15 May 2006 the Court of Appeal (hovioikeus, hovrätten),
having held an oral hearing, upheld the lower court's judgment. As
witness H. was again unavailable for the hearing, despite several
previous attempts by the court to reach him, the District Court
recordings of his statements were played back during the hearing.
- In
its decision the court noted that there were no reasons in the
co-defendant's case to mitigate the punishment based on the long time
that had passed since the offences. It further noted that both
defendants had previously been sentenced many times to unconditional
prison sentences. Taking that into account the court found that the
length of the sentence awarded by the District Court struck a fair
balance between the act committed, the motives for that act and other
aspects of their guilt.
- On
10 October 2006 the Supreme Court (korkein oikeus, högsta
domstolen) refused leave to appeal.
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.
A. Admissibility
- The
Government raised an objection claiming that the applicant had failed
to exhaust domestic remedies in respect of his complaint under
Article 6 § 1 of the Convention about the length of the
proceedings. The applicant's co-defendant had raised the length issue
both before the District Court and the Court of Appeal. The applicant
had not done so. Only before the Supreme Court had he mentioned the
fact that many years had passed since the act was committed. The
Government argued that the application should thus be declared
inadmissible under Article 35 §§ 1 and 4 of the Convention.
- The
applicant contested this argument.
- The
Court notes that the applicant did not raise the issue of length in
clear terms before the national courts, unlike his co-defendant.
However, the Court of Appeal elaborated on the issue also with regard
to the applicant, noting that the sentence awarded was justified and
that the length of the proceedings was not to be considered a
mitigating factor.
- The
Court notes that had the Court of Appeal reduced the applicant's
sentence in a manner which provided express and quantifiable redress
for the breach of the reasonable time requirement, an issue might
arise as to the applicant's victim status (see, for example Beck
v. Norway, no. 26390/95, §§ 27-29, 26 June
2001 and Uoti v. Finland (just satisfaction), no. 61222/00, §
14, 13 January 2009). However, this was not the case. The Court
further recalls that no effective remedy as such exists in Finland
with regard to the length of proceedings. On that account, the
Government's argument on non-exhaustion of domestic remedies must be
rejected.
- The
Court notes that this complaint 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
period to be taken into consideration began on 12 October 2000 and
ended on 10 October 2006. It thus lasted six years for three levels
of jurisdiction.
- 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 argued that the time during which witness H. could not be
located for service of the summons or could not attend hearings had
to be deducted from the length of the proceedings. Thus, the length
attributable to the Government was in total four years and four
months for three levels of jurisdiction, which could not be
considered excessive.
- The
applicant maintained that his case had not been complicated and that
witness H. had been serving a prison sentence in Finland and Sweden
during the proceedings and could thus have been reached.
- The
Court observes that the pre-trial investigation and consideration of
charges by the prosecutor took less than six months in total. The
proceedings before the District Court lasted some three years and
those before the Court of Appeal one year and nine months. The
Supreme Court refused leave to appeal within five months.
- The
delay in the proceedings was clearly caused by the time during which
witness H. could not be found for service of the summons or could not
attend hearings. It is not entirely clear from
the parties' observations why witness H. could not be reached,
especially as the applicant claimed that H. was serving a prison
sentence both in Finland and in Sweden. Witness H. was
eventually heard before the District Court, where he refused to say
anything on the matter. This, however, could not have been known
beforehand to the applicant or the court. The Court presumes that
this was the reason why the Court of Appeal decided, after several
failed attempts to have H. testify, that it was not necessary to hear
him, although the applicant and his co-defendant had both requested
that H. be heard in person.
- The
Court notes that the Government have not commented on the applicant's
claims that witness H. could have been easily reached as he was
serving a prison sentence at the time. This being the case, the Court
can only take as a starting point the applicant's submissions on the
matter. The Government, for their part, have not shown that the
necessary steps were taken by the authorities to have the summons
served on witness H. within a reasonable time or to make sure that he
appeared in court as requested in the present case.
- 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. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 2 that he had been
convicted for having called an old friend. None of the witnesses gave
evidence to the effect that he was involved in the alleged offence.
- Having
regard to the case-file, the Court finds that the matters complained
of do not disclose any appearance of a violation of the applicant's
rights under the Convention. Accordingly, this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 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 2,000 euros (EUR) in respect of pecuniary losses
suffered by him during the time he served his sentence in prison.
- The
applicant also claimed EUR 30,000 in compensation for non-pecuniary
damage.
- The
Government contested the claim for pecuniary damage. The claim for
non-pecuniary damage was deemed excessive as to quantum. They
considered that the award should not exceed the amount of EUR 2,000
in total.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 1,500.
B. Costs and expenses
- The
applicant also claimed EUR 4,685 for the costs and expenses incurred
before the Court.
- The
Government considered that the award should not exceed EUR 2,500
(inclusive of value added tax) as only one of the applicant's two
complaints was communicated to the Government for observations.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 covering costs
and expenses for the proceedings before the Court.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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:
EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage;
EUR 2,000 (two
thousand euros) in respect of costs and expenses;
plus any tax that
may be chargeable on the abovementioned amounts;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
