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FOURTH
SECTION
CASE OF PETROFF v. FINLAND
(Application
no. 31021/06)
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 Petroff v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, 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. 31021/06) 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
Pentti-Nikolai Petroff (“the applicant”), on 2 August
2006.
2. The
applicant was represented by Mr Seppo Jääskeläinen, a
lawyer practising in Espoo. The Finnish Government
(“the Government”) were represented by their Agent, Mr
Arto Kosonen of the Ministry for Foreign Affairs.
- On
1 December 2008 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 1951 and lives in Helsinki.
- On
6 February 1997 the applicant was questioned as a suspect regarding
an aggravated tax offence.
- The
charges became pending before the District Court (käräjäoikeus,
tingsrätten) on 17 November 1997.
- In
the period between 20 March 1998 and 17 May 2001 the bailiff
unsuccessfully tried to reach the applicant at least three times:
once in March 1998 at an address in Helsinki and twice, in January
and June 1999, via the post box used by the applicant's company in
Helsinki. It appears from the documents provided that the applicant
called the bailiff on or after 20 March 1998 informing him of a new
address outside Helsinki. However, there is no indication that the
bailiff tried to reach him at that or any other address than those
mentioned above.
- As
is customary in cases where a person cannot be found by the bailiff,
a warrant for the applicant's arrest was issued on 24 June 1999.
The warrant was subsequently renewed at regular intervals.
- On
17 May 2001, while serving a prior prison sentence, the applicant was
located by the bailiff and served with the summons.
- The
District Court held preparatory hearings on 5 December 2002 and
11 February 2003. The main hearing was organised over two days,
on 24 and 26 March 2003. The applicant and four witnesses were heard.
Two of those witnesses testified on the applicant's behalf.
- On
5 May 2003 the District Court convicted the applicant of an
accounting offence and aggravated tax fraud. The charges with regard
to a third offence had been withdrawn due to its having become
time-barred. The applicant was sentenced to seven months'
imprisonment.
- In
his appeal of 1 June 2003 the applicant requested an oral hearing, at
which the four previously heard witnesses would be heard on the same
matters as at first instance. In the same observations, however, he
stated that, due to the length of time that had passed, the witnesses
had not been able to recall, before the District Court, the relevant
events which had taken place from 1992 to 1994. He also argued that
the charges should be dismissed owing to the length of the
proceedings. In his additional observations of 6 July 2004, the
applicant requested that the Court of Appeal (hovioikeus,
hovrätten) hear two entirely new witnesses.
- On
29 June 2005 the Court of Appeal rejected the request for an oral
hearing as manifestly unnecessary since no issue had arisen as to the
assessment of the credibility of the oral evidence and as the matter
could be decided on the basis of the written material presented
during the proceedings. The lower court's judgment was upheld but
instead of an unconditional prison term of seven months the applicant
was sentenced to 180 hours of community service.
- On
29 August 2005 the applicant requested leave to appeal. The request
was denied on 7 February 2006 by the Supreme Court (korkein
oikeus, högsta domstolen).
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
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 6 February 1997 when
the applicant was questioned as a suspect in the pre-trial
investigation. The period ended on 7 February 2006 with the Supreme
Court's refusal to grant leave to appeal to the applicant. The
proceedings thus lasted in total nine years and one day 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 the applicant could not
be found for service of the summons had to be deducted from the
length of the proceedings attributable to the Government. Other than
this period the proceedings had advanced quickly. Thus, according to
the Government, the proceedings had lasted five years, three months
and six days, which could not be considered excessive.
- The
applicant stated that it was for the Government to ensure that he was
reached. He had had the same address in the population registry from
1994 until the autumn of 1999, after which it had been erroneously
changed by the authorities. This, he continued, could also be
attributable to the Government.
- The
Court observes that the proceedings as such were conducted within
acceptable time limits. The pre-trial investigation and the
consideration of charges by the prosecutor took some nine months. The
proceedings before the District Court, once the summons had been
served, lasted approximately two years, as did the proceedings before
the Court of Appeal. The Supreme Court refused leave to appeal within
seven months.
- However,
the time during which the applicant could not be found for the
delivery of the summons, over three years in total, caused a
considerable delay in the proceedings. It is not entirely clear from
the parties' observations why the applicant was not reached,
especially as he had called the bailiff and informed him of his new
address. At the same time the applicant claims that his official
address since 1994, and until late 1999, was the one in Helsinki,
which seems not to be the address to which the bailiff had tried to
deliver the summons. The Court concludes that the Government have not
shown that the necessary steps were taken by the authorities to
deliver the summons to the applicant within a reasonable time 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 § 3(d) that he was
refused the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him, that the Court of
Appeal refused him an oral hearing and subsequently the right to
supplement his appeal after he had been denied a hearing and that the
Court of Appeal ignored his written evidence.
- 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 507, 431.03 euros (EUR) in respect of
pecuniary damage for losses suffered by him due to wrongful taxation,
the loss of his business, his imprisonment and the costs incurred due
to his own work on his case.
- In
addition the applicant claimed EUR 50,000 in compensation for
non-pecuniary damage.
- The
Government contested the claim for pecuniary damage and found both of
the claims excessive as to quantum. As the amount claimed for
the non-pecuniary damage related to all of the applicant's complaints
and only one of them was communicated to the Government for
observations, the award should not exceed the amount of EUR 3,000 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 3,000.
B. Costs and expenses
- The
applicant also claimed EUR 11,712 for the costs and expenses incurred
before the Court.
- The
Government considered that the award should not exceed EUR 3,000
(inclusive of value added tax) as only one of the applicant's four
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
- Declares unanimously the complaint concerning
the excessive length of the proceedings admissible and the remainder
of the application inadmissible;
- Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by six
votes to one
(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 3,000 (three
thousand 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 unanimously 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
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Björgvinsson is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION
OF JUDGE BJÖRGVINSSON
I do not agree that there has been a violation of Article 6 § 1
of the Convention. Admittedly, nine years for the overall proceedings
is a long time. However, as repeatedly stated in the case-law of the
Court, the reasonableness of the length of the proceedings must be
assessed in the light of the circumstances of the case with reference
to, inter alia, the conduct of the applicant and the relevant
authorities, (Pélissier and Sassi v. France
[GC], no 25444/94, paragraph 67, ECHR 1999-II).
I agree with the majority, as stated in paragraph 22 of the judgment,
that the “proceedings as such were conducted within acceptable
time limits.” This implies, as can also be seen from paragraphs
7 and 23 of the judgment that, of the whole nine years taken by the
proceedings, the only problematic period of “inactivity”,
in the view of the majority, is the period between 20 March 1998
and 17 May 2001 (three years and two months). As regards this period,
the majority finds that “the Government have not shown that the
necessary steps were taken by the authorities to deliver the summons
to the applicant within a reasonable time ...”.
I respectfully disagree with this finding. From paragraphs 7, 8 and
23 of the judgment it transpires that during this period the bailiff
repeatedly, albeit unsuccessfully, tried to reach the applicant to
serve the summons on him, which eventually led to an arrest warrant
being issued on 24 June 1999. This arrest warrant was subsequently
renewed at regular intervals. The applicant was finally located by
the bailiff on 17 May 2001 when he started to serve a prison
sentence. I believe that the bailiff took, within a reasonable time,
genuine and relevant steps in attempting to locate the applicant.
It appears from the documents that the applicant on or
after 20 March 1998 called the bailiff's office to
inform him of a new address outside Helsinki. However, if such a
telephone call took place as early as 20 March 1998, as the
applicant alleges, it strongly indicates that the applicant was aware
of the fact that the bailiff was trying to reach him. It would
therefore seem that the applicant allowed this state of affairs to
persist for more than three years. Nevertheless, he still finds it
appropriate to complain to the Court that the bailiff did not do
enough to ensure that he was reached and to claim compensation for
non-pecuniary damage allegedly suffered as a result of that. I am
unable to accept this.
For these reasons I find that there has been no violation of Article
6 § 1 in this case. It follows that I also disagree with
awarding compensation and costs and expenses to the applicant.
