FOURTH SECTION

DECISION

Application no. 48915/06 by S. against Finland

The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Fatoş Aracı , Deputy S ection Registrar ,

Having regard to the above application lodged on 1 December 2006,

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

Having deliberated, decides as follows:

THE FACTS

The applicant , Mr S., is a Finnish national who was born in 1951 and lives in Espoo . He did not have a legal representative before the Court. 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

In 1992 the police began an investigation concerning debtor dishonesty and some other offences allegedly committed by the applicant. On 25 and 27 May 1993 the police seized a large number of documents. Some of the documents gave rise to fresh suspicions concerning fraud in connection with unemployment benefits. In 18 November 1993 an unemployment fund filed a criminal complaint against the applicant alleging that he had obtained various benefits from them by deception during the time when he was still a manager in certain companies. On 15 June 1994 the regional unemployment authority filed a similar complaint. The applicant was first questioned by the police in connection with these complaints on 21 April 1995 and 21 May 1995. The pre-trial investigations of these issues were closed on 10 and 14 November 1995.

The applicant petitioned the Deputy Parliamentary Ombudsman ( eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman ), who in her decision of 28 February 1997 took the view that the pre-trial investigations, beginning in October 1992 and ending in November 1995, should have been speedier.

The charges concerning the alleged dishonesty as a debtor and other offences belonging to the initial line of investigation were subsequently left unexamined.

On 20 April 1999 the public prosecutor decided not to bring charges against the applicant in respect of misuse of unemployment benefits. In his decision he established that the applicant was guilty of two counts of aggravated fraud and two counts of attempted aggravated fraud. He also noted that the merits of the prior proceedings concerning debtor dishonesty, with which the fraud in question was closely connected, were no longer open for examination and the evidence in both sets of proceedings was the same. Referring to chapter 1, section 8(1) of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål , Act no. 689/1997) he went on to state:

“... As the examination of the case as far as the so-called main pre-trial investigation reports are concerned has been postponed and the case has subsequently been left unexamined and due to the fact that the time that has passed has already amounted to a sanction for the suspect[s], S. having been under arrest for over two days, I find it reasonable and appropriate not to prosecute in the present case. ...”

On 16 June 1999 the applicant requested that the prosecutor charge him before the District Court with the offences mentioned in the decision of 20 April 1999, as he wanted to have it established that he was not guilty of those offences.

The case came before the District Court on 26 June 2002. In his response, the applicant denied the charges. He requested that they be dismissed for that reason, but also because they had become time-barred and because the prior proceedings had not been fair. The applicant asserted, inter alia , that the length of the proceedings had been excessive. He also claimed that he had not been able to defend himself fully as one of his key witnesses, L., who had been the head of the unemployment fund, had not been heard at the pre-trial stage. Due to the lapse of time, this flaw in the pre-trial investigation could not be rectified by hearing her in court.

On 16 February 2005 the court established the applicant ’ s guilt in respect of two of the charges. One of the other charges was dismissed, as it had become time-barred. Another was dismissed for lack of evidence. As to the applicant ’ s assertions concerning the fairness of the proceedings the court stated, inter alia , that the case had not been dealt with in a reasonable time and that L., although she had testified before the court, had not been able to remember the case at hand. The court noted that the applicant had requested that the police hear L. during the pre-trial investigation. It considered that hearing L. at that stage might have been relevant to the case. However, the court concluded that, all in all, the applicant ’ s possibilities to defend himself had not been undermined to the extent of warranting the dismissal of the charges.

The applicant again petitioned the Deputy Parliamentary Ombudsman, who in his decision of 26 January 2006 found that the length of the proceedings had violated the applicant ’ s right to a fair and public hearing within a reasonable time as guaranteed in the Constitution and Article 6 § 1 of the Convention. He also found that the applicant had not had an effective remedy in this respect. He submitted his view about the excessive length to the investigating police unit and the public prosecutor.

On 24 March 2005 the applicant appealed to the Court of Appeal, requesting that the remaining charges be dismissed. In addition to his previous arguments he asserted, inter alia , that the proceedings in the District Court had not been fair, as one of the lay judges had not been able to receive the written evidence due to his visual handicap. He also contended that the District Court had unlawfully taken into account as evidence a statement given by his fiancée T. during the pre-trial investigation, after she had exercised her right to refrain from giving testimony in court. T. had also been a suspect in this case and the prosecutor had, as for the applicant, issued her with a decision of non-prosecution, while establishing her guilt. The applicant did not request an oral hearing.

On 1 March 2006 the court dismissed the appeal. In its reasons it stated, inter alia , that one of the lay judges did have a visual handicap which had restricted his ability to make personal observations of written evidence. However, he had been informed of its contents in relevant parts. As to the use of T. ’ s statement, the court found that she could not be considered as a witness but as the applicant ’ s co-defendant and, therefore, the law did not prevent the use of her previous statement as evidence. Having regard to the totality of evidence submitted by the parties, the court considered that neither the failure to hear L. at the pre-trial stage nor the use of T. ’ s statement as evidence rendered the proceedings unfair. The court shared the lower court ’ s opinion in that the proceedings had not complied with the reasonable time requirement. However, having regard to the substantial amount of written evidence produced to the court by the prosecutor and the applicant alike, the court found no reason to conclude that the applicant ’ s possibilities to defend himself had been undermined due to the lapse of time.

On 15 June 2006 the Supreme Court refused leave to appeal.

B. Relevant domestic law

Chapter 1, section 7(1) and (2) of the Criminal Procedure Act reads as follows:

“The public prosecutor may waive prosecution:

if a penalty more severe than a fine is not anticipated and the offence is as a whole considered of little significance in view of its detrimental effect and the degree of culpability; and

if the offence was committed by a person under 18 years of age and a penalty more severe than a fine or imprisonment for a maximum of six months is not anticipated and the offence is considered to be the result of a lack of judgment or caution rather than heedlessness of the prohibitions and commands of the law.”

Chapter 1, section 8 reads as follows:

“Unless an important public or private interest otherwise requires, the public prosecutor may, in addition to the circumstances referred to in section 7, waive prosecution:

where the trial and the punishment are deemed unreasonable or pointless in view of the settlement reached by the offender and the injured party, the offender ’ s actions in order to prevent or remove the effects of the offence, his or her personal circumstances, the other consequences of the offence to the offender, the welfare or health care measures undertaken or other circumstances; or

where the offence would not have a material effect on the total sentence under the provisions on joint punishment and consideration of previous punishments.”

Accordingly, the public prosecutor has three options: he or she may bring charges before the District Court, waive prosecution due to the lack of evidence or other similar reason, or find that the suspect has committed an offence but decide not to prosecute under the specific conditions set out in the law.

Chapter 1, section 10(1) of the Criminal Procedure Act provides that where the public prosecutor has, by virtue of section 7 or 8, decided not to bring charges, he or she shall upon request by the person concerned submit the decision concerning guilt to a court of law for review.

Chapter 17, section 18(1) and (2) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) provides that, in a criminal case, a person whose prosecution has been waived by virtue of chapter 1, section 7 or 8 of the Criminal Procedure Act shall not be heard as a witness (Act No. 690/1997). Chapter 17, section 20 of the Code provides that a witness shall not refuse to testify. However, a person who is or has been married or is engaged to one of the parties need not testify against his or her will.

Provisions concerning a party apply also to persons who are not heard as a party to the case or a witness (chapter 17, section 18(3) of the Code). A statement that a witness has previously given to the police shall be read out in a hearing only if he or she has retracted the earlier statement or when he or she refuses to testify (chapter 17, section 32 of the Code). The same applies to a party to the case (chapter 6, section 7(2) of the Criminal Procedure Act).

COMPLAINTS

The applicant complained under Article 6 of the Convention firstly about the length of the above proceedings .

He also contended under that Article that he had not received a fair trial for the following reasons. One of the District Court judges had not been able to observe the written evidence presented before that court as he was blind. The applicant had not been able to examine all witnesses against him, as T. had invoked her right not to testify in court. His possibilities to defend himself had been significantly diminished as the police had failed to hear as a witness the head of the unemployment fund, who had instructed him in filing his application for unemployment benefits.

The applicant further complained under Article 13 that he had not had an effective remedy in respect of the above complaints.

THE LAW

A. The complaint concerning the length of the proceedings and the lack of an effective remedy in that connection

The applicant complained under Article 6 of the Convention that the proceedings against him had been excessively lengthy. He also complained under Article 13 of the Convention about the lack of an effective remedy in that connection.

Article 6 reads, insofar as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 reads:

“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.”

1. The parties ’ submissions

By a letter dated 26 January 2009 the Government informed the Court of their unilateral declaration , signed on the same date, with a view to resolving the issue raised b y this part of the application.

The declaration provided as follows:

“Whereas the efforts with a view to securing a friendly settlement of the case have been unsuccessful, the Government wishes to express – by way of a unilateral declaration – its acknowledgement that in the special circumstances of the present case neither the length of the criminal proceedings did fulfil the requirement of the term ‘ reasonable ’ referred to in Article 6 § 1 of the Convention nor did the applicant have at his disposal an effective domestic remedy for his complaint about the length of proceedings, as required by Article 13 of the Convention.

Consequently, the Government is prepared to pay the applicant in compensation for non-pecuniary damage and costs and expenses EUR 3,150 ( three thousand one hundred and fifty euros) , inclusive of the possible value-added tax. In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings and the impugned lack of an effective remedy thereto , and thus an acceptable sum as to quantum in the present case.

The total sum will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of the failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default perio d plus three percentage points.

In the light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach th e conclusion that there exists ‘ any other reason ’ , as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of th e present application and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision. Accordingly, the Government i nvites your Court to strike the application out of its list of cases. ”

In a letter of 25 February 2009 the applicant firstly argued that the Government ’ s unilateral declaration had been submitted outside the time-limit set by the Court for observations on the admissibility and merits of the application, and it should therefore not be taken into consideration. In any event, the applicant opposed the Government ’ s suggestion to strike the application out of the Court ’ s list of cases and requested that the e xamination of the case be continued. As to the compensation offered by the Government, the applicant considered it inadequate.

2. The Court ’ s assessment

The Court reiterates that b oth parties filed submissions with the Registry in the context of friendly settlement negotiations (Article 38 § 1 (b) of the Convention and Rule 62 of the Rules of Court). No settlement was reached.

Article 37 of the Convention provides that the Court may , at any stage of the proceedings , decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the following proviso:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court points out that , under certain circumstances, it may be appropriate to strike out an application , or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued. In deciding whether or not it should strike the length of proceedings complaint out of its list, the Court will examine carefully the terms of the declaration made by the Government in the light of the principles emerging from its case-law, in particular its judgments and decisions in cases such as Tahsin Acar v. Turkey [GC] (no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ( (striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006); Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 ‑ IX) ; Kalanyos and Others v. Romania (no. 57884/00, § 25, 26 April 2007) ; Viinikanoja v. Finland ((partial striking out), no. 20532/05, 6 January 2009); and Nevala v. Finland , ((partial striking out), no. 10391/06, 20 January 2009) .

In this case, the Court notes that following the applicant ’ s rejection of the Court ’ s proposal for a friendly settlement, the Court requested the Government to submit their observations on the admissibility and merits of the application by 19 January 2009. On that date, the Government Agent asked, by e-mail, for an extension of that time-limit in order to prepare a unilateral declaration. He was informed that the President had authorised an extension until 26 January 2009. He was further informed that a formal letter of request was expected and that the applicant would be informed of the President ’ s decision upon receipt of that document. The Court observes that no formal letter of request was filed by the Government nor was the applicant informed of the extension. The Government, nevertheless, duly filed a unilateral declaration within the extended time-limit.

The application concerns, in so far as communicated to the Government, the length of proceedings and the lack of an effective remedy in that connection. Having regard to the repetitive nature of the application and the Government ’ s informal request for an extension, the Court considers it reasonable to admit the Government ’ s unilateral declaration to the case file, regardless of their failure to follow up formally their request. It notes in particular that the applicant submitted comments on the content of the declaration.

The Court notes that the current application is a follow-up to the applicant ’ s earlier case T.K. and S.E. v. Finland , in which he was the second applicant, namely S.E. ( no. 38581/97, 31 May 2005 ). In its admissibility decision of 16 March 2004 concerning that case the Court made a distinction between, on the one hand, the proceedings prior to the prosecutor ’ s decision of 20 April 1999 not to bring charges and, on the other, those following the applicant ’ s request of 16 June 1999 that the prosecutor charge him before the court. The Court assumed that Article 6 of the Convention applied under its “criminal head” to the first-mentioned part of the proceedings and under its “civil head” to the latter part, as the applicant ’ s civil right to a good reputation was arguably at issue. At the time of the examination of the T.K. and S.E. case, the civil head of the proceedings against the current applicant was still pending at the domestic level.

Having regard to the above, the Court finds that, in the examination of the application at hand, only the length of the civil head of the proceedings may be taken into account , since the length of the criminal proceedings has already been addressed by the Court in the above-mentioned decision. As to the length of the civil proceedings, it lasted seven years for three levels of jurisdiction .

The Court notes that t he Government ’ s declaration contains a clear acknowledg e ment that the “reasonable time” requirement has not been respected within the meaning of Article 6 § 1 of the Convention. The Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses, that is 3,150 euros, c onstitutes adequate redress for the excessive length of the proceedings and the lack of an effective remedy in that connection, having regard to all the circumstances of the case and to its awards in comparable length of proceedings cases.

The Court has established in a number of cases its practice concerning complaints about the violation of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-). Furthermore, it has already had occasion to address complaints related to alleged breach of one ’ s right to a hearing within a reasonable time in cases against Finland (see, for example, Riihikallio and Others v. Finland , no. 25072/02, § § 22-27, 31 May 2007 ; F. and M. v. Finland , no. 22508/02, § § 48-53, 17 July 2007 and Ekholm v. Finland , no. 68050/01, § § 62-66, 24 July 2007 ).

Against this background, the Court considers that it is no longer justified, within the meaning of Article 37 § 1 (c) of the Convention, to continue the examination of th is part of the application, and finds no reasons which would require the further examination of th is part of the case (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. The remainder of the application

The applicant also complained under Article 6 of the Convention that one of the lay judges in the District Court was not able to observe the written evidence submitted before that court as he was blind. The Court notes that the District Court sat in a composition of one professional judge and four lay judges. In its reasons the Court of Appeal stated that one of the lay judges did indeed have a visual handicap which had restricted his ability to make personal observations of written evidence, but that he had been informed of the contents of that evidence in relevant parts. The Court also notes that according to the relevant domestic provisions concerning the composition of the District Court in criminal proceedings, the court is normally composed of one professional judge and three lay judges. A fourth lay judge may be added to the composition if that is deemed justified because of the scope of the case or another special reason (Chapter 2, Article 1 (1) and Article 2 (1) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ), as in force at the relevant time). Thus, the Court considers that the visual handicap of one of the four lay judges in this case did not affect the applicant ’ s right to a fair hearing before the District Court. In any event, whatever disadvantage the alleged flaw in the lower court ’ s proceedings might have caused to the applicant, it was remedied at the higher instance on appeal. This complaint is thus manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant further complained under Article 6 of the Convention that he had not been able to examine all witnesses against him, as T. had invoked her right not to testify in court. The Court observes, firstly, that the applicant did not even request an oral hearing on appeal. It further transpires from the documents that the evidence submitted to the trial courts was quite extensive. The statement given by T. during the pre-trial investigation, and used as evidence, was not the only, nor decisive, evidence leading to the establishment of the applicant ’ s guilt (compare and contrast Lucà v. Italy , no. 33354/96, § 43 , ECHR 2001 ‑ II ). This complaint must therefore also be rejected as manifestly ill-founded according to Article 35 §§ 3 and 4 of the Convention.

Lastly, the applicant complained under Article 6 of the Convention that his possibilities to defend himself were significantly diminished as the police had failed to hear the head of the unemployment fund as a witness at the pre-trial stage. The Court considers that even if the possibility to put questions to that particular witness had become pointless due to the length of the proceedings, the fact that she had not already been heard by the police does not render the whole proceedings unfair, having regard to the totality of evidence submitted to the courts by both parties. It follows that this complaint must also be rejected under Article 35 §§ 3 and 4 of the Convention as manifestly ill-founded.

As far as the applicant has complained about the lack of an effective remedy in connection with the above complaints, the Court notes that the applicant was able to put forward any arguments he wished to advance in proceedings at three levels of jurisdiction. His complaint under Article 13 of the Convention is thus manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the length of proceedings complaint under Article 6 § 1 of the Convention and the complaint under Article 13 of the Convention concerning the lack of an effective remedy in that connection, as well as of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint s in accordance with Article 37 § 1 (c) of the Convention;

Declares inadmissible the remainder of the application.

FatoÅŸ Aracı Nicolas Bratza              Deputy Registrar President