FOURTH SECTION

CASE OF SEPPÄLÄ v. FINLAND

(Application no. 45981/08)

JUDGMENT

STRASBOURG

11 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Seppälä v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	David Thór Björgvinsson, President,
	Päivi Hirvelä,
	Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 45981/08) 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 a Finnish national, Mr Henry Joakim Seppälä (“the applicant”), on 25 September 2008.
2.  The applicant was represented by Mr Hannu Kaitaluoma, a lawyer practising in Kokkola. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3.  On 22 June 2009 the President of the Fourth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1975.
5.  On 2 March 2000 the applicant was first questioned by the police on suspicion of offences in relation to his business activities. The last questioning of the applicant took place on 26 June 2001.
6.  The first pre-trial investigation reports were completed and sent to the public prosecutor on 25 October 2000, 4 December 2000 and 4 October 2001. The last pre-trial investigation report was submitted to the prosecutor on 16 November 2004.
7.  On 22 December 2004 the prosecutor, who according to the Government had decided to join the cases concerning the applicant, preferred charges against him at the District Court. The court held a preliminary hearing on 16 November 2005 and later an oral hearing over a number of days. The applicant was heard before the court for the first time on 12 January 2006.
8.  On 12 April 2006 the District Court issued its judgment with regard to the applicant and 24 other defendants in 11 cases which had been joined. The applicant was convicted of aggravated tax fraud and other economic offences and sentenced to one year and two months' imprisonment. Jointly with other defendants, he was also ordered to pay some EUR 89,000 with interest to the tax authorities.
9.  In its reasoning the District Court stated that the majority of the criminal acts in respect of all defendants had been committed in 1998 and 1999. The bulk of cases had been lodged with the court on 22 December 2004. The last application for a summons in the joined cases had been filed with the court on 27 July 2005. The court noted that the case concerned particularly wide-ranging economic crimes. The examination of the cases needed to be joined due to the connections between different companies and persons involved. For that reason the court, in sentencing the defendants, took into account only to a lesser degree the time that had elapsed since the commission of the criminal acts and the length of the proceedings as mitigating circumstances. The amount of reduction in the respective sentences was not specified by the court. As regarded the applicant, the court also took into account his previous community service and noted that he had committed the crimes partly while on probation.
10.  On 27 November 2007, having held an oral hearing, the Court of Appeal dismissed the applicant's appeal, including his complaint concerning the length of the proceedings.
11.  On 31 March 2008 the Supreme Court refused leave to appeal.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  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...”
13.  The Government contested that argument.
14.  The period to be taken into consideration began on 2 March 2000 when the applicant was first questioned by the police and ended on 31 March 2008, when the Supreme Court refused leave to appeal. The proceedings thus lasted eight years and one month for three levels of jurisdiction.
A.  Admissibility
15.  The Government raised an objection claiming that the applicant had failed to exhaust the domestic remedies in that he did not request the District Court to mitigate his sentence relying on Chapter 6, section 7, point 3 of the Penal Code (rikoslaki, strafflagen, as amended by Act no. 515/2003), which provides for that possibility where a considerably long period has passed since the commission of the offence. The applicant only raised that issue on appeal.
16.  The Court observes that the District Court elaborated on the question of length of proceedings with regard to all defendants, including the applicant, however taking it into account only to a lesser degree. The Court notes that had the District Court, or the higher courts on appeal, as requested by the applicant, reduced his sentence in a manner which provided express and quantifiable redress for the alleged 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. Furthermore, under Finnish law in force at the time, a defendant was at no stage of the proceedings able to request a domestic court to expedite the conduct of the proceedings or to file a claim for compensation either during their course or following their termination (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006-... ). Consequently, as the Government have not shown that any form of relief – either preventive of compensatory – was available for the applicant, the Government's argument of non-exhaustion of domestic remedies must be rejected (see, mutatis mutandis, Kangasluoma v. Finland, no. 48339/99, §§48-49, 20 January 2004).
17.  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
18.  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).
19.  The Government argued that while the applicant himself did not hinder the proceedings at the pre-trial stage, the investigation into a number of offences, of which the applicant was one of the several suspects, had been delayed due to the conduct of another suspect. According to the Government, that person had not been apprehended for questioning until 7 October 2004 after long-lasting efforts by the police to that end. After having conducted that hearing, the police had swiftly completed the pre-trial investigation and the case material had been submitted to the prosecutor. In the Government's view, the delay of more than three years between the last questioning of the applicant in June 2001 and the completion in November 2004 of the pre-trial investigation, as far as the applicant was concerned, was caused by another suspect and was thus not attributable to the State.
20.  The Government also argued that the time taken by the public prosecutor for the consideration of charges had been greatly affected by the above-mentioned delay in the pre-trial investigation. The prosecutor's decision to join the cases due to the close link between them had been justified. After having received the last pre-trial investigation report in the cases concerning the applicant, the prosecutor had proceeded without delay. The need to examine all charges together had also been acknowledged by the District Court.
21.  The Government pointed out that the District Court's preparatory hearing of 16 November 2005 had been held in the applicant's absence, as the authorities had not been able to summon him. The applicant had subsequently been apprehended in Spain and brought to the main hearing on 12 January 2006. The Government was of the opinion that the applicant had tried to abscond from the trial and there had been a delay of nearly two months in the District Court proceedings in respect of the applicant for which the State was not responsible.
22.  The Government concluded that there had been no unnecessary delay or inactivity on the part of the authorities in dealing with the case. Moreover, the case had been a complex one concerning economic offences and the evidence produced to the courts had been extensive.
23.  The applicant contested the Government's arguments. There had been no means available to him to speed up the proceedings at any stage. He had not been responsible for the inability of the police to question other suspects. Neither had he been able to affect the prosecutor's decision to join the cases of different suspects. The authorities took the risk of delaying the proceedings by joining several cases in the same proceedings. The applicant's absence from the District Court's preliminary hearing had not affected the conduct of the proceedings in any way. The applicant had not even been obliged to appear at that hearing.
24.  The Court observes that the time taken by the police and the prosecution prior to the court proceedings was almost four years and ten months, which can be considered quite long even in a case concerning economic crime. The Court takes note of the Government's submission that the proceedings at the pre-trial stage, including the consideration of charges, were delayed on account of the difficulties encountered by the police in reaching one of the applicant's co-suspects. The Court further takes note of the Government's submission as to the appropriateness of the joint examination of the bulk of intertwined cases. However, in the absence of any documentary evidence by the Government, the Court cannot verify and assess whether the police, in fact, resorted to all available measures, to a sufficient degree, in their attempts to locate the co-suspect for questioning. Thus, the Court is unable to come to the conclusion that the delay in the pre-trial proceedings was not attributable to the State. It is, however, clear from the submissions of both parties that the delay at that stage was not caused by the applicant.
25.  The Court observes that the examination of the case by the District Court took over one year and three months. It lasted another year and seven and a half months until the Court of Appeal issued its judgment. The Supreme Court's decision on the application for leave to appeal was given some four months later. The Court takes note of the Government's argument concerning the complexity of the case and the extent of the case material. The nature and volume of the case may well explain the time elapsed before the trial courts. The Court is not, however, convinced by the Government's argument that the applicant's absence from the District Court's preliminary hearing delayed the proceedings. It has not even been suggested by the Government that the court had been unable to proceed with the examination of the case in other parts until the applicant's presence could be secured.
26.  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).
27.  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
28.  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.”
29.  The Government submitted that in his letter of 17 December 2009 to the Court the applicant did not claim any just satisfaction. Accordingly, no sum should be awarded on that account.
30.  The Court notes that by letter dated 9 November 2009 the Court invited the applicant to submit by 21 December 2009 his written observations together with any claims for just satisfaction. The practice direction for formulating those claims was enclosed. The applicant's attention was drawn to Rule 60 of the Rules of Court and he was reminded that failure to submit quantified claims, together with the required supporting documents, entailed the consequence that the Chamber would either make no award of just satisfaction or else reject the claim in part. This applied even if the applicant had indicated his wishes concerning just satisfaction at an earlier stage of the proceedings.
A.  Damage
31.  The Court observes that in his application form the applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage. He submitted that due to the lengthy proceedings he had lived in constant uncertainty about the possible consequences of the criminal suspicions against him, which had caused him suffering. The Court further observes that while in his reply to the Court's letter of 9 November 2009 the applicant did not specify his claim for non-pecuniary damage again, he nevertheless referred to all documents submitted earlier to the Court and stated that all the demands previously made remained the same.
32.  The Court notes that its award in respect of non-pecuniary damage is intended to provide financial compensation for non-material harm, for example mental or physical suffering. It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that an award in money is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law.
33.  The Court has found a violation of the applicant's right to have criminal proceedings against him conducted within a reasonable time. It considers that the applicant must have sustained non-pecuniary damage as a result of that violation. Having regard to the Court's considerations on the merits of the case, and ruling on an equitable basis, it awards him EUR 3,000 in respect of non-pecuniary damage.
B.  Costs and expenses
34.  The Court observes that in his application form the applicant also claimed EUR 1,500 for lawyers' fees.
35.  According to the Court's established case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. The Court notes that the applicant has not submitted any bill or invoice of the fees claimed. In these circumstances the Court finds itself unable to determine to what extent the above requirements have been met and, accordingly, dismisses the applicant's claim in this part.
C.  Default interest
36.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	David Thór Björgvinsson
	Deputy Registrar	President