FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39076/97

by Kenneth LEHTINEN

against Finland

The European Court of Human Rights ( Fourth Section ) sitting on 14 October 1999 as a Chamber composed of

Mr G. Ress, President , Mr M. Pellonpää, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, Judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 September 1997 by Kenneth Lehtinen against Finland and registered on 22 November 1997 under file no. 39076/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 8 October 1998 and the observations in reply submitted by the applicant on 3 December 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1950 and living in Järvenpää .

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 7, 9 and 14 February 1995, the police of Vantaa searched the premises of the applicant’s limited liability company Järvenpään Yrityspalvelu Oy and his home. The warrant indicated that the search was to take place at the address of the aforementioned company, on the premises of “other companies” at the same address and at the applicant’s home address. The search also concerned the company’s computers. It aimed at collecting evidence relating to an aggravated fraud and a book-keeping offence suspected to have been committed by the applicant between 5 June 1991 and 25 May 1994. Certain material was seized, of which a record was drawn up. On 10 February 1995, part of the seized material was returned to the applicant.

On 12 February 1995, the applicant lodged a petition with the Parliamentary Ombudsman ( eduskunnan oikeusasiamies , riksdagens ombudsman, hereinafter “the Ombudsman”) concerning the search on 7 and 9 February. He requested that the Ombudsman investigate whether the economic crime investigators of the Vantaa Police had acted in accordance with law and good practice. Furthermore, he requested that the Ombudsman take proper action in order that the police be held liable for the legal consequences. He stated that the police seized, for the purpose of copying, twelve files with personal documents, of which nine had been returned. He drew attention to the dates indicated in the search warrant. He stated that, although not mentioned in the search warrant, he had been informed orally that the suspicions concerned aiding and abetting economic crime involving Lehtikarin Kirjapaino , a company he had been advising as an accountant and tax adviser.

The applicant’s petition contained five subheadings regarding the search and seizure. Firstly, he complained that the investigators had misbehaved. Secondly, he submitted that the seized documents did not pertain to the crime under investigation. As an example, he gave a private letter to the secretary of a political party, dated 31 January 1995. Thirdly, he maintained that one of the police officers had read correspondence, sent by telefax , between himself and his lawyer, dated in December 1994 and in 1995. Furthermore, that officer had perused his calendar for 1995 and his notebook. Fourthly, he stated that the police had seized, by copying, a considerable amount of computerised information, which was not relevant to the crime under investigation. Lastly, he pointed out that the seized material was required for his daily business. He requested that the Ombudsman order the police to return all the seized material and to destroy all the copies thereof.

In February 1995, the Ombudsman asked the officers concerned, and their superiors, to give their comments on the petition. He received their answers by May 1995. According to the statement given by the National Police Department of the Ministry of the Interior, the goal of the search had been to find documents and bookkeeping material relating to an economic crime under investigation. The material did not contain any documents which could not be seized and used as evidence. One of the officers had read a telefax message between the applicant and his lawyer “in order to verify that it concerned only the trial pending” against the applicant at the time and not “the offence under investigation”. Moreover, the lawyer in question had not been assisting the applicant before the court during the then pending trial. The telefax had not been seized.

By March 1995, the rest of the seized material was returned to the applicant.

On 7 February 1996, the applicant supplemented his petition to the Ombudsman with a written statement given by an officer of the Central Criminal Police. On 6 February 1996, the officer had questioned the applicant as a witness in a case involving two companies other than the company mentioned in the search warrant. The officer confirmed that he had then presented to the applicant written material that the officers of the Vantaa Police had obtained, on 14 February 1995, during the search of the applicant’s office “relating to another pre-trial investigation”.   The applicant submitted that the use of the seized material in connection with other investigations was not acceptable. He maintained, referring to the Niemietz v. Germany case ( Niemetz v. Germany judgment of 16 December 1992, Series A no. 251-B), that the seizure amounted to a violation of his human rights. He further complained that since the search had been reported in local daily papers, his commissions had reduced, causing considerable financial losses to his business. He renewed his request concerning, firstly, a charge of an offence in office and, secondly, the destroying of the seized material.

The applicant was charged with aiding and abetting an offence of debtor’s dishonesty and a bookkeeping offence. The court proceedings started on 21 February 1996. He was acquitted on both counts.

On 4 April 1997, the Deputy Ombudsman, referring to the comments made by the officers concerned and their superiors, found no reason to suspect that the measures taken in connection with the search and seizure had been either unlawful or otherwise incorrect. Therefore, she found that the petition did not require any further steps on her part.

The applicant has not challenged the seizure before the court of first instance under chapter 4, section 13, of the Coercive Means of Criminal Investigation Act 1987 ( pakkokeinolaki , tvångsmedelslagen 450/1987, hereinafter “the Coercive Means Act”, see relevant domestic law). He has also not instituted any proceedings concerning a claim for damages as he has stated that he is not yet able to estimate the amount of the possible damages.

B. Relevant domestic law and practice

Under chapter 4, section 1, of the Coercive Means Act, an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings. According to chapter 4, section 9, a record shall be kept of the seizure. The purpose of the seizure and the measures taken shall be duly recorded and the seized objects listed therein. According to chapter 4, section 11, a seizure shall be rescinded as soon as it is no longer necessary. The seizure shall also be rescinded if no charges are brought for the offence leading to the seizure within four months of the date of the seizure of the object. Under chapter 5, section 1, a search may be carried out for the purpose of finding the object to be seized or investigating a circumstance relevant to the offence. It is necessary that there be reason to suspect that an offence has been committed for which the most severe penalty provided is imprisonment for more than six months.

Chapter 4, section 13, of the Coercive Means Act reads as follows:

(translation from Finnish)

“At the request of a person whom the case concerned, the court shall decide whether the seizure shall remain in force. A request that has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. ... A court decision on seizure shall be subject to separate appeal.”

According to section 40 of the Pre-trial Investigation Act, the material accumulated during a pre-trial investigation shall be collected in a file, if this is considered necessary for further consideration of the case. The file shall include the interrogation records as well as documents and recording assumed to be of importance. It shall also indicate the measures taken during the investigation and any material not included in the file.

Under the 1919 Constitution ( Suomen Hallitusmuoto , Regeringsform för Finland ) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence of a civil servant, is entitled to prosecute the civil servant, or demand that he or she be prosecuted, and to claim damages (Article 93).             

According to the 1889 Penal Code ( rikoslaki , strafflag ), a civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (chapter 40, section 10 and 11).

Under the 1974 Damage Compensation Act ( vahingonkorvauslaki , skadeståndslag 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 (chapters 3 and 4).

According to rule 7 of the Instruction to the Ombudsman ( Eduskunnan oikeusasiamiehen johtosääntö , Instruktion för riksdagens justitieombudsman 10.1.1920/2), if the Ombudsman receives a petition against a public official or authority concerning a matter falling within his area of competence, he or she is to carry out an investigation. If the Ombudsman suspects that the person or authority concerned has committed an unlawful act or default calling for his intervention, he or she must inform and hear that person or authority. The Ombudsman, however, has no power to quash or amend decisions made by administrative or judicial authorities. The most severe measure the Ombudsman can use is to bring criminal charges, or order criminal charges to be brought, before a court against any public servant within his jurisdiction for misconduct in office. This measure is used relatively seldom (three out of 2674 decisions in 1997, none out of 2361 decisions in 1998; see the Reports of the Parliamentary Ombudsman on his activities in 1997, p. 303, and in 1998, p. 310 ( Eduskunnan oikeusasiamiehen kertomus toiminnastaan , Riksdagens justitieombudsmans berättelse över sin verksamhet )). Clearly illegal or improper conduct may lead to a reprimand by the Ombudsman (17 in 1997 and nine in 1998, see the above-cited Reports). The Ombudsman may also express critical views of the impropriety of the conduct of an authority or public servant, for future reference on a matter.

COMPLAINT

The applicant complains that the search and seizure violated his right to respect for his private life, home and correspondence. He maintains that the measures were of a wholesale character and went beyond the terms of the requisite warrant since the main part of the seized material did not concern the company or the period under investigation. The applicant’s right to professional secrets was violated.  The reports in local daily papers, which made the case public, affected his professional reputation negatively. Furthermore, part of the seized material was photocopied for possible future use against the applicant.

The applicant considers that his petition to the Ombudsman was the only remedy at his disposal within the meaning of Article 35 of the Convention. He submits that the search violated his rights under Article 8 of the Convention, and that the national courts do not examine claims that concern human rights violations taken alone ( yksistään ). He submits that  he does not have any claim for damages.

PROCEDURE

The application was introduced on 29 September 1997 before the European Commission of Human Rights and registered on 22 November 1997.

On 8 July 1998, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 8 October 1998. The applicant replied on 3 December 1998.

On 27 October 1998 the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant has complained that the search and seizure of certain documents violated his right to respect for his private life, home and correspondence. He maintains that the measures were of an indiscriminate character and went beyond the terms of the requisite warrant since the main part of the seized material did not concern the company or the period under investigation. He has also complained that his right to professional confidentiality was violated. Furthermore, part of the seized material was photocopied for possible future use against the applicant. The applicant invokes Article 8 of the Convention which provides:

“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.”

1. Concerning the search and seizure

The Government submit that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 (former Article 26) of the Convention. The applicant did not challenge the seizure before the court of first instance in accordance with chapter 4, sections 13 and 16, of the Coercive Means Act. If the applicant had made such a request, the court of first instance would have been obliged to hear the case within a week after receiving the request thereof, and then to decide, with appropriate reasoning, whether the seizure should remain in force. Accordingly, the applicant was in a position to object to the seizure and, thereby, obtain redress in respect of the alleged breaches. The provisions of the Convention, also when taken alone, were directly applicable as national law. In the Government’s opinion, the normal remedy under the Coercive Means Act cannot be substituted by recourse to the Ombudsman.

The applicant disputes the Government’s view.  He maintains that it is not possible to appeal against a decision made by the Ombudsman. Therefore, by complaining to the Ombudsman he exhausted domestic remedies. Furthermore, regarding the damage the case has allegedly caused him, he states that the losses cannot be estimated yet.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system.  Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.  The rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law.  In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, § 48).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.  The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia , the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, § 45).

Article 35 also requires that the complaints made before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34).

Furthermore, in the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.  However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up.  Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see the above-mentioned Cardot judgment, p. 18, § 34).  It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210-1211, §§ 65-68).

Applying those principles in the present case, the Court notes, firstly, that, as a general rule, a petition to the Ombudsman cannot be regarded as an effective remedy as required by Article 35 of the Convention (c.f., mutatis mutandis , the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, pp. 80-84, §§ 80-84; and No. 11192/84, Marc Montion v. France, Dec. 14.05.1987, D.R. 52, p. 235). Secondly, the Court recalls that in the case of Raninen , in which the applicant had only taken the step of lodging a petition with the Ombudsman in respect of his complaints, the Court dismissed the Government’s preliminary objection of non-exhaustion of domestic remedies (see the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, p. 2816-2818, §§ 38-42). However, in the Raninen case, the Court found, against the background specified in the judgment, that the Government had not demonstrated that either a criminal prosecution or an action for damages would in the particular circumstances of that case have offered reasonable prospects of success (§ 42). It should also be noted that in the circumstances of the Raninen case no specific court remedy comparable to that provided by chapter 4, section 13, of the Coercive Means Act in the present case, was available (see, European Commission of Human Rights, No. 20972/92, Dec. 7.3.1996, point 1, unpublished (extracts of the case are published in D.R. 84-A, pp. 17-33)).

In the instant case, the Court recalls that the applicant’s principal complaint was that the search and seizure had gone beyond the terms of the requisite warrant since the bulk of the material had not concerned the company or the period under investigation. In this regard, the Court notes that the applicant had at his disposal a remedy, namely a petition referred to in chapter 4, section 13, of the Coercive Means Act, whereby he could have obtained a court review of the ground for maintaining the seizure (see also Z v. Finland judgment of 25 February 1997, Reports , 1997-I, pp. 337-338, § 49 and pp. 348-349, § 101). If the court had found that there were no grounds for maintaining the seizure, it would have ordered that the seizure be quashed. This is a power not possessed by the Ombudsman.

Furthermore, the Court recalls that by virtue of domestic law, the court of first instance was obliged to examine a petition concerning seizure speedily. This petition could have been filed even before the hearings in the relevant criminal case had started. The decision of the court would also have been subject to separate appeal.

The Court concludes that the petition against the seizure can be considered available and sufficient for the purposes of Article 35 of the Convention.

It remains to be examined whether there were specific reasons absolving the applicant, according to the generally recognised rules of international law, from exhausting this court remedy which was at his disposal. In this respect the Court first refers to its above consideration concerning the differences between this case and the case of Raninen . Secondly, the Court considers that the Ombudsman’s decision of 4 April 1997 cannot provide a ground absolving the applicant from exhausting the court remedy at his disposal. The duty to exhaust domestic remedies must, in principle, be assessed in the light of the circumstances prevailing at the relevant time, not in the light of some later events that might cast doubt on the efficiency of the remedy. Even assuming that the Ombudsman’s above decision should be taken into account as an element in assessing the effectiveness of the court remedy in the particular case, the Court notes that the subject-matter of a petition to the national court concerning seizure is not the same as a petition to the Ombudsman. In this regard, the Court notes, for example, that the applicant’s petition to the Ombudsman concerned, among other things, the behaviour of the policemen in connection with the search, this aspect falling under the competence of the Ombudsman. On the other hand, the examination of the court of first instance in respect of the seizure would have primarily concerned the grounds for the seizure and the scope thereof, i.e. the core of the applicant’s complaint before the Court.

The Court finds that there were no specific reasons absolving the applicant from exhausting the court remedy provided by the Coercive Means Act.

It follows that this part of the application must be rejected pursuant to Article 35 § 1 of the Convention.

2. Concerning the photocopies

The Government does not dispute that the seized documents were photocopied. They, however, argue that the retention of photocopies was in accordance with the law. The Government further note that in her decision of 30 March 1998 the Deputy Parliamentary Ombudsman expressly recommended the copying of seized material, instead of keeping it stored by police. While the aim is to collect evidence for future criminal proceedings, copies should be made when these can be used instead of the original material, and the original material should be returned as soon as possible. This practice also complies with the requirement of least nuisance. In the present case the copying ensured the continuation of work in the applicant’s office. As regards the copying of computerised material, the Government notes that copying is in practice the only way to handle material of this kind.

As to the use of seized material in another investigation in which the applicant is not a suspect, the Government notes that Finnish legislation does not impose any restrictions on the right of the police to use additional information or such information concerning an offence that the police have found in the course of their investigation of another offence. Furthermore, in practice it would be unrealistic to prohibit the police from using information that they already possess, as it would be impossible to supervise compliance with the prohibition.

The applicant argues in this respect that the police photocopied the seized material, including documents which were dated at another time than the period mentioned in the warrant, documents of a private character and documents which were not related to the company mentioned in the warrant. According to the applicant, the photocopies were mentioned for “further use” and the applicant was not informed of their existence until he found out about them on 6 February 1996 in connection with other criminal investigations in which the applicant was summoned by the police as a witness.

a) Regarding the photocopying of the seized material and the copying of the computer files, the Court finds that these actions are related to the original seizure. The Court finds that it is not possible to separate a question of the legality of a seizure from the subsequent copying of the seized material. If the court of first instance had found that the seizure had been unlawful, the applicant would have been able to lodge an action for damages in respect of the search, seizure and copying.

Therefore, the Court finds, referring to its findings above, that this part of the application must be rejected pursuant to Article 35 § 1 of the Convention.

b) The Court notes that the applicant has also complained of the manner in which the photocopies have been used in connection of another criminal investigation. The Court notes that he raised specific complaints in this regard to the Ombudsman a year after he had filed the original petition. By this time, the Ombudsman had already heard the relevant authorities in the case. The Court finds however that it is not necessary to determine whether the applicant exhausted domestic remedies as this part of the application is in any event inadmissible for the following reasons.

The Court notes that the criminal proceedings against the applicant had not commenced when the applicant became aware that the police held photocopies of material obtained from the seizure at his office. Even assuming that the mere existence of such photocopies in the police archives would concern, as a separate question, the applicant’s private life, the Court finds that also this question is related to the original seizure in the same manner as the copying. In so far as the applicant has complained that the copies were used against him in other criminal investigations, the Court finds that his allegations in this regard are unsubstantiated as the applicant has not identified any such proceedings.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President