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FOURTH
SECTION
CASE OF HARJU v. FINLAND
(Application
no. 56716/09)
JUDGMENT
STRASBOURG
15
February 2011
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 Harju v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56716/09) 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, Ms Anu Orvokki Harju (“the
applicant”), on 21 October 2009.
- The
applicant was represented by Mr Markku Fredman, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that her right to respect for home
under Article 8 of the Convention had been violated and that she had
had no access to a court or an effective remedy in this respect under
Articles 6 and 13 of the Convention.
- On
12 January 2010 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Helsinki.
- The
applicant was under suspicion of having organised illegal immigration
(laittoman maahanmuuton järjestäminen, ordnande av
olaglig inresa). The pre-trial investigation in her case was
conducted by the criminal investigators of the Finnish Border Guard
(Rajavartiolaitos, Gränsbevakningsväsendet) who,
inter alia, conducted a search at her domicile on 9 July 2009
at 10 p.m. The applicant was not at home at the time of the search.
She was not contacted about the search nor was her counsel informed
about the search. During the search her computer, among other items,
was seized.
- When
the applicant returned home later that night, she found a handwritten
note indicating that the Finnish Border Guard criminal investigators
had searched her apartment and that some items had been seized.
- According
to the records of the search and seizure, dated 11 July 2009,
the seized materials, with the exception of the computer, were
returned to the applicant on that same date.
- The
applicant was later questioned as a suspect.
II. RELEVANT DOMESTIC LAW
A. Constitution
- According
to Article 10 of the Finnish Constitution (perustuslaki,
grundlagen, Act no. 731/1999), the sanctity of everyone's home is
guaranteed. Measures derogating from this right, and which are
necessary for the purpose of guaranteeing basic rights and liberties
or for the investigation of crime, must be laid down by an Act.
B. Border Guard Act
- According
to section 41, subsection 1, of the Border Guard Act (rajavartiolaki,
gränsbevakningslagen; Act
no. 578/2005), the Border Guard is a pre-trial investigation
authority under the Pre-Trial Investigation Act. According to
subsection 2, with the exception of undercover activities,
undercover transactions, telecommunications interception and
telecommunications monitoring, the provisions of the Police Act, the
Pre-Trial Investigation Act, the Coercive Measures Act or any other
Act on the powers of police officers to prevent and investigate
offences and to bring charges apply to border guards within their
competence to prevent and investigate offences and to bring charges.
12. Under
section 42, of the Border Guard Act, facilitation of illegal entry
within the meaning of Chapter 17, section 8, subsection 1, of the
Penal Code (rikoslaki, strafflagen, Act no. 563/1998 as
modified by Act no. 650/2004) is among the
offences that may be investigated by the Border Guard.
C. Coercive Measures Act
- Chapter 5, section 1, subsection 1, of the Coercive
Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no.
646/2003) provides that a search may be conducted, inter alia,
if there is reason to suspect that an offence has been committed and
provided the maximum sentence applicable exceeds six months'
imprisonment.
- According
to Chapter 5, Section 3, of the Coercive Measures Act, an official
with the power of arrest shall decide on a search of premises.
However, a police officer may carry out a search of premises without
a warrant when the purpose of the search is to locate a person to be
apprehended, arrested, detained, brought to court or subjected to a
bodily search, or to seize an object, when continuously followed or
monitored since the commission of the offence. A
police officer may carry out a search of the premises also in other
urgent cases.
- The
person whose domicile is being searched, or in his or her absence
someone else, must be given the opportunity to be present at the
search and to call a witness, unless this causes delay. If none of
the above-mentioned persons was present at the search, the person
whose domicile has been searched must be immediately informed
(Chapter 5, section 4, subsection 2).
- A
search at domicile cannot be conducted between 9 p.m. and 6 a.m.
unless there are special reasons (Chapter 5, section 5, subsection
4).
D. Penal Code
- According
to Chapter 17, section 8, subsection 1, of the Penal Code, a person
can be sentenced for organising illegal immigration to a fine or
imprisonment for a maximum of two years.
E. Remedies
- Chapter
4, section 13, of the Coercive Measures Act provides that, at the
request of a person whom the case concerns, the court shall decide
whether the seizure of any materials shall remain in force. A request
which has been submitted to the court before its examination of the
charges shall be considered within a week of its reception by the
court. The court shall provide those with an interest in the matter
an opportunity to be heard, but the absence of any such person shall
not preclude a decision on the issue. A decision reviewing a
seizure is subject to a separate appeal (Chapter 4, section 16,
subsection 1).
- According
to section 118, subsection 3, of the Constitution everyone who has
suffered a violation of his or her rights or sustained loss through
an unlawful act or omission by a civil servant or other person
performing a public function shall have the right to request that the
civil servant or other person in charge of the public function be
sentenced to a punishment and that the public organisation, official
or other person in charge of a public function be held liable for
damages, as provided in more detail by an Act.
- Chapter
40, section 9, subsection 1, of the Penal Code (as modified by Act
no. 604/2002) provides that if a public official, when acting in
office, intentionally in a manner other than that provided above in
this Chapter violates or neglects to fulfil his official duty based
on the provisions or regulations to be followed in official
functions, and the act, when assessed as a whole, taking into
consideration its detrimental and harmful effect and the other
circumstances connected with the act, is not a petty offence, he
shall be sentenced for violation of official duties to a fine or to
imprisonment for a maximum of one year.
- Chapter
40, section 10, of the Penal Code (as modified by Act no. 604/2002)
provides that if a public official, when acting in office, through
carelessness or lack of caution, in a manner other than that referred
to in section 5, subsection 2, violates or neglects to fulfil his or
her official duty based on the provisions or regulations to be
followed in official functions, and the act, when assessed as a
whole, taking into consideration its detrimental and harmful effect
and the other circumstances connected with the act, is not a petty
offence, he shall be sentenced for negligent violation of official
duties to a warning or to a fine.
- According
to Chapter 1, section 14, of the Criminal Procedure Act (laki
oikeudenkäynnistä rikosasioissa, lagen om rättegång
i brottmål, as modified by Act no. 647/2003), an injured
party may bring a private prosecution only if the public prosecutor
has decided not to press charges.
- Under
Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki,
skadeståndslagen, Act no. 412/1974) proceedings may be
brought against the State in respect of damage resulting from fault
or neglect by its employees in the performance of their duties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained of a violation of her right to respect for home
as provided in Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant had not exhausted domestic
remedies as the applicant had not requested a court under Chapter 4,
section 13, of the Coercive Measures Act to decide whether the
seizure should remain in force. There appeared to be no specific
reasons absolving the applicant from exhausting this remedy. As she
had not done so, in the Government's view the application should be
declared inadmissible under Article 35 §§ 1 and 4 for
non-exhaustion of domestic remedies.
- The
applicant disagreed and pointed out that the application did not
concern the seizure but the search itself. There existed no legal
remedies under Finnish law against a search. Even though there
existed an effective remedy in relation to a seizure, a possible
favourable outcome of such proceedings could not have had any effect
on the search. The applicant had thus fulfilled the criteria for
exhaustion of domestic remedies as no such remedies had been
available against the search.
- The Court considers, in the light of the parties'
submissions, that this objection is closely related to the merits of
the applicant's complaint. It will therefore examine this preliminary
objection together with the merits of the case. The Court concludes
therefore that this complaint raises questions of fact and law which
are sufficiently serious that their determination should depend on an
examination of the merits, and that no other grounds for declaring it
inadmissible have been established. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
applicant noted that there had clearly been an interference with her
right to respect for home and that that interference had had a basis
in Finnish law. However, the quality of that law was problematic.
There existed no legal safeguards whatsoever in this respect. Since
very strict limits were called for as regards the conduct of searches
without a warrant, the law in question did not fulfil the “in
accordance with law” requirements, as established by the Court.
According to Finnish law, a search might be conducted if there was
reason to suspect that an offence had been committed. The threshold
for “reason to suspect” was very low and was always
considered to be fulfilled when the investigative authority so
decided. There existed no possibility to challenge a decision to open
an investigation and to obtain a decision from a court finding that
there had been no reason to suspect a person of an alleged crime
following a search of his home. Moreover, the applicant's telephone
number had been and still was listed in the public telephone
directory. However, the authorities did not try to contact her and
she had thereby been deprived of her right to be present at the time
of the search. Accordingly, it had not been performed in accordance
with the national law.
- The
applicant agreed that the interference had pursued a legitimate aim.
She stressed that the application concerned the lack of any
safeguards to challenge the search conducted at her home and thus the
arbitrary nature of the measure.
- The
Government agreed that the search and seizure at the applicant's home
constituted an interference within the meaning of Article 8 of the
Convention. Because of the urgency of the matter,
the search had been conducted on the basis of an order given orally
by an officer with power of arrest only a few hours after the arrival
in Finland of persons suspected of illegally entering the country. It
had been necessary to conduct the search immediately to verify
whether there had been other such persons in the applicant's home,
and to ensure that no evidence of an offence had been destroyed.
Therefore, in the Government's view, there had been a justified
reason, as required by Chapter 5, section 5, subsection 2, of the
Coercive Measures Act, to conduct the search at 10 p.m. The search
had been performed for the purposes of the prevention of crime and it
had therefore pursued a legitimate aim. It had not been possible to
inform the applicant about the possibility to be present during the
search as neither her telephone number nor that of her counsel had
been known to the officers. The applicant had, however, been
immediately informed about the search by a hand-written note left in
her apartment, mentioning, inter alia,
the contact details of the officers who had carried out the search.
The written search warrant and the records of the seizure had been
communicated to the applicant as soon as she had been located for the
purposes of questioning, namely a day and a half after the search.
The search and seizure had thus been carried out in accordance with
the law.
- As
to the necessity requirement, the Government maintained that the
interference had been necessary in a democratic society. Due to the
nature of the suspected crime, it had not been possible to delay the
search.
2. The Court's assessment
(a) Whether there was an interference
- The
parties agree that there was an interference in respect of the
applicant's right to respect for her home. The Court sees no reason
to differ on that point.
- The
Court must therefore examine whether this interference was in
conformity with the requirements of the second paragraph of Article
8, in other words whether it was “in accordance with the law”,
pursued one or more of the legitimate aims set out in that paragraph
and was “necessary in a democratic society” to achieve
the aim or aims in question.
(b) Was the interference justified?
(i) Was the interference “in
accordance with the law”?
- The
Court notes that the expression “in accordance with the law”,
within the meaning of Article 8 § 2 requires firstly that the
impugned measure should have some basis in domestic law. Second, the
domestic law must be accessible to the person concerned. Third, the
person affected must be able, if need be with appropriate legal
advice, to foresee the consequences of the domestic law for him, and
fourth, the domestic law must be compatible with the rule of law
(see, among many other authorities, Rotaru v. Romania [GC],
no. 28341/95, § 52, ECHR 2000 V; Liberty and Others v.
the United Kingdom, no. 58243/00, § 59, 1 July 2008; and
Kennedy v. the United Kingdom, no. 26839/05, § 151.,
ECHR 2010 ).
(α) Was there a legal basis in Finnish
law?
- The
Court reiterates that, in accordance with the case-law of the
Convention institutions, in relation to Article 8 § 2 of the
Convention, the term “law” is to be understood in its
substantive sense, not its formal one. In a sphere covered by written
law, the “law” is the enactment in force as the competent
courts have interpreted it (see, inter alia, Société
Colas Est and Others v. France, no. 37971/97, § 43, ECHR
2002-III). In this respect, the Court notes that its power to review
compliance with domestic law is limited, it being in the first place
for the national authorities, notably the courts, to interpret and
apply that law (see, inter alia, Chappell v. the United
Kingdom, 30 March 1989, § 54, Series A no. 152-A).
- The
Court notes that both parties appear to agree that the search and
seizure had a basis in the Coercive Measures Act. The Court is
therefore satisfied that the interference complained of had a basis
in Finnish law.
(β) “Quality of the law”
- The
second requirement which emerges from the phrase “in accordance
with the law” – the accessibility of the law – does
not raise any problems in the instant case. The Court assumes that
the same is true also for the third requirement, the “foreseeability”
of the consequences of the domestic law for the applicant.
- As
to the fourth requirement, the Court reiterates that Article 8 §
2 requires the law in question to be “compatible with the rule
of law”. In the context of search and seizure, the domestic law
must provide some protection to the individual against arbitrary
interference with Article 8 rights. Notwithstanding the margin of
appreciation which the Court recognises the Contracting States have
in this sphere, it must be particularly vigilant where, as in the
present case, the authorities are empowered under national law to
order and effect searches without a judicial warrant. If individuals
are to be protected from arbitrary interference by the authorities
with the rights guaranteed under Article 8, a legal framework and
very strict limits on such powers are called for (see Camenzind v.
Switzerland, 16 December 1997, § 45, Reports of
Judgments and Decisions 1997 VIII).
- The
Court must examine the “quality” of the legal rules
applicable to the applicant in the instant case. It notes in the
first place that under Chapter 5 of the Coercive Measures Act, a
search may be conducted, inter alia, if there is reason to
suspect that an offence has been committed and provided the maximum
sentence applicable exceeds six months' imprisonment. The search
warrant is issued by the investigative organs themselves. A
search may be carried out without a warrant in urgent cases.
- With
regard to the safeguards against abuse existing in Finnish
legislation, the Court observes that, in the absence of a requirement
for prior judicial authorisation, the investigation authorities had
unlimited discretion to assess the expediency and scope of the search
and seizure. Moreover, in cases of urgency, a
search could be carried out even without a warrant. The Court
notes that in such cases the officer conducting the search was thus
competent to assess alone whether or not to conduct the search and to
determine its scope.
- The
Court would emphasise in this connection that measures of search and
seizure represent a serious interference with Article 8 rights and
must accordingly be based on a law that is particularly precise. It
is essential to have clear, detailed rules in this area, setting out
safeguards against possible abuse or arbitrariness (see Sorvisto
v. Finland, no. 19348/04, § 118, 13 January 2009).
- Turning
to the present case, the Court reiterates that it has already found
in the case of Sallinen and Others v. Finland
(no. 50882/99, § 89, 27 September 2005) that there was
no independent or judicial supervision of the issuance of the search
warrant as the decision to authorise the order was taken by the
police themselves (see also, mutatis mutandis, Kruslin v.
France, 24 April 1990, §§ 34-35, Series A no.
176-A; Silver and Others v. the United Kingdom, 25 March 1983,
§ 90, Series A no. 61; and Sorvisto v. Finland,
cited above, § 117). The same is true in the present case where
the search was ordered and conducted by Border Guard officers.
- The
Court notes that the absence of a prior judicial warrant may be
counterbalanced by the availability of an ex post factum
judicial review (see, mutatis mutandis, Smirnov v. Russia,
no. 71362/01, § 45, ECHR 2007 VII). However, in the
present case the applicant did not have any effective access, a
posteriori, to a court to have both the lawfulness of, and
justification for, the search warrant reviewed. The applicant's right
to respect for her home was thus violated by the fact that there was
no prior judicial warrant and no possibility to obtain an effective
judicial review a posteriori of either the decision to order
the search or the manner in which it was conducted (see Varga v.
Romania, no. 73957/01, § 73, 1 April 2008; and
Işıldak v. Turkey, no. 12863/02, § 52, 30
September 2008).
- The
Court therefore concludes that, even if there could be said to be a
general legal basis for the measures provided for in Finnish law,
that law does not provide sufficient judicial safeguards either
before the granting of a search warrant or after the search. The
applicant was thus deprived of the minimum degree of protection to
which she was entitled under the rule of law in a democratic society.
- The
Court finds that in these circumstances it cannot be said that the
interference in question was “in accordance with the law”
as required by Article 8 § 2 of the Convention.
- There
has therefore been a violation of Article 8 of the Convention. For
the above reasons, the Court dismisses the Government's preliminary
objection based on non-exhaustion of domestic remedies.
(ii) Legitimate aim and necessity of the interference
- Having
regard to the above conclusion, the Court does not consider it
necessary to review compliance with the other requirements of
Article 8 § 2 in this case (see, for example,
Kopp v. Switzerland, 25 March 1998, Reports of Judgments
and Decisions 1998-II, § 76).
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 6 and 13 of the Convention about
the lack of access to a court and lack of an effective remedy in this
respect. The Court notes that, although the applicant invoked both
Articles 6 and 13 of the Convention, her complaint is more properly
examined under the latter Article alone. Article 13 of the Convention
reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
1. The parties' submissions
- The applicant reiterated that her application only
concerned the search of her home, not the seizure of items. There
were no explicit or, for that matter, any provisions or case-law even
suggesting that a person subject to a search could have access to a
court in order to challenge that search. It was true that the civil
liability of the officers conducting the search could be invoked but
this possibility was neither effective nor capable of providing
redress for the interference with her right to respect for her home
as she would have to show that she had actually suffered damage. None
of the private prosecutions initiated against officers having
conducted or ordered a search had been successful. This remedy was
therefore theoretical as well as illusory. The same was true for
lodging a complaint with the Parliamentary Ombudsman (eduskunnan
oikeusasiamies, riksdagens justitieombudsman) and
the Chancellor of Justice (oikeuskansleri,
justitiekanslern). There had been a violation of Article 13 taken
together with Article 8 of the Convention.
- The
Government maintained that, according to the Court's case-law, it was
not required that there must exist a possibility to challenge the
legality of a search before it was conducted but that there should
exist a possibility to rely on effective remedies after the search.
Although there was no explicit possibility to challenge a search
before a court, this did not mean that there was no effective remedy.
Under Chapter 4, section 13, of the Coercive Measures Act the
legality of a seizure could be examined by a court. An unlawful
search could also result in the civil or criminal liability of the
State or the officer carrying out the search. Moreover, an injured
party could bring a private prosecution if the public prosecutor had
decided not to press charges. Also, the possibility for the
Parliamentary Ombudsman and the Chancellor of Justice to control the
legality of measures taken by authorities should be taken into
account. In the Government's view the applicant had thus had access
to a court in respect of the search and seizure conducted at her
home. She had had several effective remedies at her disposal but had
failed to use any of them.
2. The Court's assessment
- Having
regard to the finding relating to Article 8 of the Convention (see
paragraph 47 above), the Court considers that it is not necessary to
examine separately whether, in this case, there has been an
additional violation of Article 13 of the Convention (see Liberty
and Others v. the United Kingdom, cited above, § 73).
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 3,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government found the applicant's claim excessive as to quantum and
considered that the total amount of compensation for non-pecuniary
damage should not exceed EUR 1,500.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the applicant the
full sum claimed.
B. Costs and expenses
- The
applicant also claimed EUR 2,701.08 for the costs and expenses
incurred before the Court.
- The
Government found the applicant's claim excessive as to quantum and
considered that the total amount of compensation for costs and
expenses should not exceed EUR 2,000 (inclusive of value-added tax).
- 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 it reasonable to award the sum of EUR 2,500 (inclusive of
value-added tax) 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
- Decides
to join to the merits of the case the Government's objection based on
non-exhaustion of domestic remedies and declares the
application admissible;
- Holds that there has been a violation of Article
8 of the Convention and dismisses in consequence the
Government's above-mentioned preliminary objection;
- Holds that there is no need to examine
separately the complaint under Article 13 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:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to her, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
