FOURTH SECTION

DECISION

Application no . 69096/11 Joni HÄNNINEN against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 18 February 2014 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria, Zdravka Kalaydjieva, Krzysztof Wojtyczek, Faris Vehabović , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 1 November 2011 ,

Having deliberated, decides as follows:

THE FACTS

1 . Th e applicant, Mr Joni Hänninen , is a Finnish national, who was born in 1970 and lives in Vantaa . He was represented before the Court by Mr Jukka Juusela , a lawyer practising in Helsinki .

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

4. On 4 June 2011 the police conducted a search of an apartment which t he applicant owned. The apartment was searched because another person staying there was suspected by the police of attempted manslaughter ( tapon yritys , försök till dråp ).

5. The applicant claims that he, as the owner of the apartment, was not allowed to be present during the search, nor was he told why the apartment was being searched and why he could not be present. The search was conducted late at night (at 11 p.m.) without any special reason. The apartment had been damaged because the police had entered violently , even though the applicant had been willing to give them a key , and the police dog had damaged the floor . T he applicant ’ s car had also been searched.

6. According to the Government, the minutes drawn up after the search indicated that the applicant, as the owner of the apartment, had been informed about the search. He had been requested to give the police the key to the security lock of the door to the apartment. As no key was available, the security lock was drilled with the applicant ’ s consent. It appeared from the minutes that the applicant ’ s car was never searched. Nor had the police dog entered the apartment during the search.

7. On 12 September 2011 the applicant received the minutes drawn up after the search.

8. By letter dated 8 December 2011, the applicant claimed compensation from the Helsinki Police Department for the damage caused by the police.

9. On 16 April 2012 the applicant ’ s claim for compensation was rejected by the Helsinki Police Department for lack of fault or negligence on the part of the police.

10. The applicant has the possibility to take the issue further by instituting a civil action in a District Court ( käräjäoikeus , tingsrätten ) but apparently he has not done so.

B. Relevant domestic law

Constitution

11. 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.

Coercive Measures Act

12. 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 that the maximum sentence applicable exceeds six months ’ imprisonment.

13. 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 were present at the search, the person whose domicile has been searched must be informed immediately (Chapter 5, section 4, subsection 2).

14. 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).

15. The search warrant is issued by the investigative organs themselves.

Penal Code

16. According to Chapter 21, section 1, of the Penal Code ( rikoslaki , strafflagen , as modified by Act no. 578/1995), a person shall be sentenced for manslaughter to imprisonment for a minimum of eight years and a maximum of twelve years. For an attempt, the maximum sentence is at most three quarters of the maximum sentence for the accomplished offence.

Remedies

17. According to section 118, subsection 3, of the Constitution any one 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 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.

18 . Chapter 40, section 9, subsection 1, of the Penal Code (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 at most one year.

19 . Chapter 40, section 10, of the Penal Code (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.

20. According to Chapter 1, section 14, of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , Act no. 689 /1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

21. 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 negligence by its employees in the performance of their duties.

COMPLAINTS

22. The applicant complained under Articles 8 and 13 of the Convention that his right to respect for his home had been violated and that he ha d not ha d a possibility, at any stage of the proceedings, to challenge the search before a court. There had thus been no effective remedy available to him.

THE LAW

A. Alleged violation of Article 8 of the Convention

23 . The applicant complained under Article 8 of the Convention of a violation of his right to respect for his home .

24. Article 8 of the Convention 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.”

25. The Government claimed that the search in question did not fall within the scope of Article 8 of the Convention and that the application was incompatible ratione materiae with the provisions of the Convention. Alternatively, they claimed that the applicant could not claim to be a victim of a violation of Article 8 of the Convention as no search of domicile had been conducted in his home. Moreover, the applicant had failed to exhaust the domestic remedies. In addition, in the Government ’ s view, by complaining of a violation of his right to respect for his home when no search had been conducted at his home but in an apartment merely owned by him, and by presenting incorrect information, the applicant had abused his right of individual application.

26. The Government maintained that there had been no interference with the applicant ’ s right to respect for his home as he was not occupying the apartment, nor residing or staying in it. He did not even have a key to it. According to the domestic law, the owner of the searched apartment had no direct right to be present during the search. He had nonetheless been informed about the search but he had never asked to be present during the search. Had he done so, it would have been allowed.

27. Were the Court to have another opinion, the Government maintained that the interference had been in accordance with the domestic law. The applicant had had access to domestic remedies in respect of the damage sustained but he had not used them. As to the necessity, the search had been performed for the purposes of solving a crime for which the maximum sentence was 12 years ’ imprisonment. The applicant had been immediately informed of the search and the security lock had been drilled with his consent. Bearing in mind that the searched apartment was not the applicant ’ s home, the interference had been justified.

28. The applicant denied having submitted incorrect information. At the time of the events, renovation work was being conducted in the apartment by a person who had the keys to it and who had been allowed to stay there during the renovation work. The applicant had only been staying elsewhere temporarily due to the renovation work, but the apartment was still his home. He lived in the apartment officially and his mail was sent there. The apartment was owned by him and contained his personal belongings. It had thus to be considered his home.

29. The applicant claimed that the search had not been conducted in accordance with the domestic law. He denied having consented to the drilling of the lock. The damage caused by the police had not been necessary and could easily have been avoided. There was no reason to conduct the search at 11 p.m. as the police had already caught the suspect before the search took place.

30 . The Court re iterates that it has repeatedly held that the notion of “home” in Article 8 § 1 encompasses not only a private individual ’ s home but may also extend, for example, to a person ’ s office used for professional purposes. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual, as well as a legal person ’ s registered office, branches and other business premises (see, inter alia , Buck v. Germany , no . 41604/98 , § 31, 28 April 2005 ; Chappell v. the United Kingdom , 30 March 1989, §§ 26 and 51, Series A no. 152-A2-A; and Niemietz v. Germany , 16 December 1992, §§ 29-31, Series A no. 251 ‑ B). A home will usually be the place, the physically defined area, where private and family life develops (see Giacomelli v. Italy , no. 59909/00, § 76, ECHR 2006 ‑ XII). In the case Gillow v. the United Kingdom the Court considered as the applicants ’ home their house from which they had been absent for almost nineteen years but of which they had retained ownership and to which they always intended to return. The applicants had not established any other home elsewhere in the United Kingdom, and they had kept their furniture in the house. T he C ourt found that the applicants had in the circumstances retained sufficient continuing links with the house for it to be considered their “ home ” , for the purposes of Article 8 § 1 of the Convention (see Gillow v. the United Kingdom , 24 November 1986, § 46 , Series A no. 109 ) .

31 . T urning to the present case, t he Court notes that the parties disagree about whether the searched apartment was the applicant ’ s home. It appears that, a t the time of the events, the apartment was being renovated and that the person carrying out the work had the keys to the apartment and was allowed to stay there. The applicant was apparently staying elsewhere temporarily, but he still owned the apartment and he claimed that his personal belongings were there. The apartment was also his official address, to which his mail was sent.

32. The Court further notes that it appears that t he applicant was contacted by the police for the key to the apartment and that, as no key was available, the lock of the apartment was drilled open by the police officers. The parties disagree about whether the applicant gave consent to the drilling of the lock or not. However, it appears from the mi nutes drawn up after the search that the drilling was done with the consent of the applicant. The applicant did not dispute the minutes.

33 . In these circumstances, even assuming that the apartment could be considered to be the applicant ’ s home, t he Court agrees with the Government that, in the present case, there h as not been an y interference because the applicant gave the police permission to enter into the apartment.

34 . T he Court therefore concludes that the applicant has failed to establish that there was any interference under Article 8 of the Convention . Ac cordingly, this part of the application must be rejected as manifestly ill ‑ founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 13 of the Convention

35. The applicant complained under Article 13 of the Convention that he ha d not ha d a possibility, at any stage of the proceedings, to challenge the search before a court.

36. 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.”

37 . The Government stressed that there was no need to examine an alleged violation of Article 13 of the Convention in cases where the application was manifestly ill-founded. Were the Court to have another position, the Government maintained that the applicant had had an effective remedy to claim compensation for alleged damage. A victim of the search could also have instituted criminal proceedings against the authorities concerned, or complained to the Parliamentary Ombudsman or the Chancellor of Justice. The applicant did not use any of these remedies. Even after the decision by the Helsinki Police department, he still had the possibility to institute civil proceedings for damages.

38. The applicant maintained that there existed no legal remedies under Finnish law against a search. The new legislation providing for an effective remedy only entered into force on 1 August 2011 and was thus not applicable to the applicant ’ s case. His claim for compensation had been rejected by the Helsinki Police Department on 16 April 2012 for lack of fault or negligence . The remedies referred to by the Government were not effective ones.

39 . The Court notes that the applicant ’ s complaint under Article 8 of the Convention was found to be manifestly ill-founded. The applicant has thus not been able to establish any arguable claim under that Article. Accordingly, this part of the application must also be rejected as manifestly ill-founded and declared i nadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President