FOURTH SECTION

DECISION

Application no . 67120/09 Kalevi Ensio NIEMINEN against Finland

The European Court of Human Rights (Fourth Section), sitting on 19 March 2013 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 15 December 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kalevi Ensio Nieminen , is a Finnish national who was born in 1952 and lives in Nokia. He was represented before the Court by Mr Jaakko Tuutti , a lawyer practising in Tampere .

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 21 July 2009, in his own apartment, the applicant stabbed another person with a knife. The victim called the police. When the police patrol arrived, they found a person with a deep, bleeding wound in front of the applicant ’ s home who told them that he had been stabbed in the applicant ’ s home by the applicant. As it was not known whether other persons were in danger, the police officers entered the applicant ’ s home in order to prevent any possible further act or event which might seriously threaten another person ’ s life, personal liberty or health. In the apartment they found nobody but the applicant. He was severely intoxicated, a breathalyser showed a result of 4.00 per mill, and he was not able to give a statement. He was taken to the local police station. The police officers found and seized a knife with a 17 cm blade covered in blood.

5. On 22 July 2009 the applicant was questioned on suspicion of aggravated assault ( törkeä pahoinpitely , grov misshandel ). He was released on the same day.

6. On 1 October 2009 the applicant was charged with aggravated assault.

7. On 26 November 2009 the Tampere District Court ( käräjäoikeus , tingsrätten ) dismissed all charges against the applicant. It found that the applicant had not intentionally hurt the other person and that the latter ’ s injury could have been caused accidentally as both the applicant and the victim had been severely intoxicated. No motive for the act could be established. The applicant and the victim were still good friends and had even come to the oral hearing together.

8. No appeal was made against this judgment and it thus became final.

B. Relevant domestic law

Constitution

9. 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.

Police Act

10. Section 16 of the Police Act ( poliisilaki , polislagen , Act no. 493/1995) provides the following:

“On the order of a commanding police officer, and in urgent cases even without such an order, police officers have the right to enter a building, other domestic premises or a vehicle if there is good reason to assume that an act or event causing a serious threat to life, personal liberty or health, or notable damage to property or the environment is taking place or about to take place. A further precondition is that the measure is essential to prevent danger or to search and take possession of explosives, weapons or other dangerous substanc es or objects.”

Coercive Measures Act

11. Chapter 5, section 1 , subsection 1, of the Coercive Measures Act ( pakkokeinolaki , tvångsmedelslag en , 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.

12. In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in criminal proceedings, that it may have been removed from someone as a result of a criminal offence or that the court may order its forfeiture (Chapter 4, section 1, of the Coercive Measures Act).

13. A civil servant having the power to arrest a person may decide to conduct a search at a person ’ s home. A police officer may conduct a search even without a warrant if it is intended, inter alia, to locate a person to be apprehended, arrested or detained or for seizure of an object that has been used immediately before in a crime. A police officer may conduct a search without a warrant also on other occasions if the matter cannot wait (Chapter 5, section 3).

14. At the time of the events there was no access to a court as concerned a search but only in respect of a seizure (Ch apter 4, section 16, subsection 1).

Penal Code

15. According to Chapter 21, section 6, subsection 1, of the Penal Code ( rikoslaki , strafflagen , Act no. 578/1995 as modified by Act no. 654/2001), a person can be sentenced for aggravated assault to imprisonment for a minimum term of one year and a maximum of ten years.

COMPLAINTS

16. The applicant complained under Article 8 of the Convention that his right to respect for home and private life had been violated. He alleged that under Finnish law a search could be conducted at a person ’ s home without any consent or supervision by a court, and that this situation was contrary to the Convention.

17. The applicant also complained under Article 13 of the Convention about the lack of an effective remedy in this respect. He claimed that under Finnish law he was not able to bring an action before a court to have the lawfulness of the search examined.

THE LAW

A. Complaint under Article 8 of the Convention

18. The applicant complained under Article 8 of the Convention that his right to respect for home had been violated when a search was conducted at his home without any authorisation or supervision by a court.

19. 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.”

20. The Government stressed, as a preliminary objection, that the applicant had not complained about the seizure of the knife and therefore had not exhausted the domestic remedies available to him under Finnish law. Moreover, the applicant ’ s complaints had been misleading as the police officers had only responded to an emergency call and had arrested the applicant on suspicion of aggravated assault. His application should therefore be rejected as an abuse of the right of individual application.

21. As to the merits, the Government expressed the view that there had been no interference with the applicant ’ s right to respect for home under Article 8 of the Convention. The applicant had been arrested and taken to the police station under Article 5 § 1 (c) of the Convention and this arrest had followed a procedure prescribed by law. The police officers had the right under section 16 of the Police Act to enter immediately the applicant ’ s apartment to prevent any further threat to life, personal liberty or health. The police officers had the power to seize an object in the context of an arrest without any warrant. The actions of the police officers had been examined in the context of the criminal proceedings against the applicant.

22. The applicant pointed out that the case was not about seizure but about search. Search was an independent measure from seizure and the lawfulness of a search could not be examined in proceedings concerning a seizure. Moreover, abuse of the right of individual application was an exceptional measure and it was not at stake in the present case.

23. The applicant claimed that his right to respect for home had been violated because there had been no prior judicial warrant or possibility to obtain an effective judicial review a posteriori , either of the decision to order the search or of the manner in which it was conducted. Finnish law did not provide sufficient legal guarantees either before the granting of a search warrant or after the search.

24. The Court notes first of all that the applicant ’ s complaint under Article 8 of the Convention is not about seizure but about the search conducted at his home. Even though there is an effective domestic remedy to complain about seizure, that remedy is not effective in respect of search (see for example Harju v. Finland , no. 56716/09 , 15 February 2011 ). Therefore, the applicant did not need to exhaust the domestic remedies for seizure. Moreover, the Court does not find the applicant ’ s account of the facts in any way misleading, let alone constituting an abuse of the right of individual application.

25. The Court notes that the parties disagree whether there was an interference in respect of the applicant ’ s right to respect for his home. Th e Court observes, however, that neither of the parties disagrees with the fact that the police officers entered the applicant ’ s home and seized a knife (see paragraph 4 above). As the applicant was not in a fit state to authorise the police to enter the premises, it must be considered that their entry and the subsequent seizure constituted an interference with the applicant ’ s right to respect for his home. The Court notes that the police entered the applicant ’ s apartment by virtue of powers given by section 16 of the Police Act, and that they conducted a seizure on the basis of the Coercive Measures Act.

26. However, the applicant is only complaining about search, not the seizure. The Court considers that, on the basis of the facts submitted to the Court, it is not possible for the Court to judge whether any search, properly speaking, was ever conducted in the applicant ’ s apartment. It is only known that the police seized a knife.

27. In these circumstances the Court concludes that the applicant has failed show that there was any search conducted at his home and, consequently, that there was any interference under Article 8 of the Convention as far as search was concerned . Accordingly, 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. Complaint under Article 13 of the Convention

28. The applicant complained under Article 13 of the Convention about the lack of an effective remedy in this respect.

29. 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.”

30. The applicant maintained, with reference to the cases of Harju v. Finland , Heino v. Finland and Sallinen and Others v. Finland, that he did not have any possibility to obtain an effective judicial review a posteriori either of the decision to order the search or of the manner in which it was conducted.

31. The Government reiterated that due to the circumstances of the present case, the applicant ’ s right to respect for home under Article 8 of the Convention was not an issue. Therefore the question of an effective remedy under Article 13 of the Convention was not relevant either.

32. The Court notes that it is true that a t the relevant time there existed no effective domestic remedy to complain about search of a domicile made by the police. However, the applicant has failed to establish that there was any search of his apartment and, consequently, that there was any interference under Article 8 of the Convention as far as search was concerned. 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 incompatible ratione materiae with the provisions of the Convention and be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Arac ı Ineta Ziemele Deputy Registrar President