FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39543/04 by Anders DANKER against Finland

The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:

Nicolas Bratza, President, Lech Garlicki, Ljiljana Mijović,

David Thór Björgvinsson, Ján Šikuta, Päivi Hirvelä, Mihai Poalelungi, judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 3 November 2004,

Having regard to the partial decision of 29 May 2007 ,

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

The applicant, Mr Anders Danker, is a Finnish national who was born in 1961 and lives in Lidingö , Sweden . He was represented before the Court by Mr J. Hakanen, a lawyer practising in Turku . 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

The facts of the case, as submitted by the parties and as they appear from the documents on the file , may be summarised as follows.

The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered . The investigation also focused on w hether there had been debtor dishonesty or fraud.

On 10 September 1994 the applicant was questioned by the police as a suspect . The pre-trial investigation was completed on 14 July 1995. The applicant was subsequently charged with economic crime allegedly committed in 1991 and 1992 .

On 18 April 1996 the Salo District Court ( käräjäoikeus, tingsrätten ) upheld a co-defendant ’ s claim that he had not been proper ly summoned to the trial and declared the case against hi m inadmissible. On 24 September 1996 the Turku Court of Appeal ( hovioikeus, hovrätten ) upheld the decision. On 20 October 1997 the Supreme Court ( korkein oikeus, högsta domstolen ) quashed the previous decisions and remitted the case to the District Court.

Meanwhile, a second hearing was held on 12 June 1996 . At the third hearing on 27 August 1996, the District Court upheld a co-defendant ’ s claim that he had not been proper ly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court ’ s decision.

The applicant was summoned to appear before the District Court for the first time at the above-mentioned third hearing held on 27 August 1996 . T he public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996.

On 21 January 1998 the District Court upheld a co-defendant ’ s claim that he had not been proper ly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court ’ s decision.

Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with , and that the court would decide at a later stage whether the trial could continue.

On 18 May 2000 the District Court issued a separate decision dismissing a co-defendant ’ s request that the charges against him should be declared inadmissible due to the length of the proceedings. It held, inter alia , that the case was exceptionally difficult , involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed a renewed request. On 12 January 2001 a co-defendant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001.

There were 28 days of hearings in the District Court up to the end of 2000, held at approximately two to five - month intervals.

On 28 June 2001 a Spanish court acceded to the request of the Finnish G overnment for the extradition of a co-defendant to Finland to serve a prison sentence which had previously been imposed on him . According to an arrangement, he would be granted immunity from further prosecution in Finland for offences he had previously committed. On 14 August 2001 the District Court found that the criminal case against the co-defendant was barred on the basis of his immunity. On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue his prosecution in Finland in respect of offences other than those for whi ch he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland . The co-defendant challenged the lawfulness of his continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003.

The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill.

Meanwhile, on 25 February and 20 August 2003 respectively, the District Court dismissed the further requests of a co-defendant and the applicant to have the charges against them ruled inadmissible on account of the length of the proceedings. The applicant ’ s procedural complaint was dismissed by the appellate court on 3 December 2003. On 12 October 2004 the Supreme Court refused leave to appeal. On 9 February 2004 the District Court also dismissed the renewed request of the applicant, among others , observ ing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal.

On 31 August 2004 the District Court dismissed a further request that the charges be declared inadmissible owing to the length of the proceedings.

During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government ’ s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003.

There had been a total of some 50 day s of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004.

On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government ’ s attention to the need to allocate adequate financial resources to both the District Court and the authorities involved in the case.

On 21 March 2006 the District Court gave its judgment. It dismissed as time-barred the charge concerning aiding and abetting debtor dishonesty but convicted the applicant of an accounting offence.

The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court noted that it had dismissed one of the charge s as time-barred. As the court was not allowed to pass judgment on the time-barred charge, redress for the length of the proceedings had to be given in some other way. Accordingly, the applicant ’ s sentence should be mitigated. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it was reducing the applicant ’ s sentence by half owing to the breach of the “reasonable time” requirement. It sentenced him to a suspended term of sixty days ’ imprisonment.

The applicant appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007.

On 22 October 2007 the Court of Appeal gave its judgment. It concurred with the lower court t hat the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress , which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court found that the applicant had not contributed to the length of the proceedings. It stated that it was reducing the applicant ’ s sentence by two-thirds owing to the lengthy proceedings .

The Court of Appeal agreed with the District Court that the standard sentence would be four months ’ imprisonment and noted that the lower court had mitigated that sentence by half, that is, sixty days. The Court of Appeal further noted that it was not possible to mitigate the applicant ’ s sentence to a fine, having regard to the harmful and dangerous nature of the offence, the motives and the guilt displayed by the offence. Applying Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 and with effect from 1 January 2004 ; rikoslaki, strafflagen ) , the Court of Appeal, owing to the breach of the “reasonable time” requirement, sentenced him to a suspended term of forty days ’ imprisonment.

The applicant requested leave to appeal. On 22 May 2008 the Supreme Court refused leave to appeal.

B. Relevant domestic law and practice

Chapter 6 , article 7, point 3, of the Penal Code reads:

“I n addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are

...

(3) a considerably long period that has passed since the commission of the offence;

if the punishment that accords with established practice would for these reason s lead to an unreasonable or exceptionally detrimental result. ”

Chapter 6, article 12, point 4, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004 ) reads:

“The court may waive the sentence if

...

4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services ;

...”

In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that , although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonabl y long proceedings, such a dismissal or declar ation of inadmissib i l ity might in some exceptional circumstances , for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6 , article 7, point 3, of the Penal Code , the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.

In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6 , article 7, point 3, of the Penal Code , reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months ’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment.

On 1 February 2006 the Supreme Court gave a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

2. He also complained under Article 13 about the lack of an effective remedy in that connection.

THE LAW

The applicant alleged a violation of the right to trial within a “reasonable time” and the absence of an effective remedy in that connection.

Article 6 § 1 reads insofar as relevant:

“In the determination 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.”

The Government contested those arguments.

A. The parties ’ submissions

The Government argued that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention on the following grounds. I n its judgment the District Court reduced the applicant ’ s sentence by half, whereas the Court of Appeal, after its own proceedings lasting 18 months , afforded further redress by reducing the sentence further , that is , by two thirds of the standard sentence. The Court of Appeal did not find any grounds to sentence the applicant only to a fine. When mitigating the sentence, the c ourt applied Chapter 6, article 7 , of the Penal Code contain ing grounds for mitigating a sentence . The c ourt expressly discussed the length of the proceedings both generally and then separately for e ach defendant. It clearly stated what the standard sentence would be for each defendant and then stated how much, due to the unreasonable length of the proceedings, it was taking off their sentences . T he way in which the length of the proceedings was taken into account provided adequate redress for the alleged violation. The Court of Appeal ’ s judgment became final when the Supreme Court, in its own proceedings lasting only 5 months, refused leave to appeal. T he applicant ha d been afforded express and quantifiable redress , which was sufficient to make good any violation for the en tire length of the proceedings.

As to the Article 13 complaint the Government submitted that Chapter 6, article 7 , of the Penal Code constitute d an effective remedy within the meaning of Article 13 . The effectiveness of the remedy did not depend on the certainty of a favourable outcome . T he said remedy , as a general matter and in the manner applied in the present case, fulfilled the requirements of an “ effective remedy ” . Thus, this part of the application was manifestly ill-founded.

While agreeing that the District Court had reduced his sentence by half, and the Court of Appeal by two thirds, owing to the length of the proceedings, the applicant argued that the reduction of his sentence was not an effective remedy. It should be kept in mind that if the charges had been dismissed, there would have been no sentence to be reduced. It was also relevant that the facts underlying the offence for which he was finally convicted were relatively simple. The applicant considered that the punitive nature of a sanction such as suspended imprisonment lay in the mere imposition of such a sentence, the length of it being of less significance. As he had been sentenced to a suspended term of imprisonment, the reduction was lacking significance. The excessively lengthy proceedings had resulted in a situation in which it had been impossible for the applicant to pursue his profession (financial consultant) in Finland and as a result he had been forced to move to Sweden . Only termination of the proceedings or dismissal of all claims could have constituted an effective remedy.

B. The Court ’ s assessment

The period to be taken into consideration for the purposes of the “reasonable time” requirement began on 10 September 1994 when the applicant was question ed by the police as a suspect . It ended on 22 May 2008 when the Supreme Court refused leave to appeal . The proceedings thus lasted some 13 years and 8 months.

T he question is whether the applicant may continue to claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against him in view of the fact that his sentence was mitigated owing to the excessive length .

A n individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (see Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, § 66; for the application of this principle in the context of Article 6, see Lüdi v. Switzerland , judgment of 15 June 1992, Series A no. 238 at § 34, and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000).

In this regard the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany , cited above, § 66, Beck v. Norway , no. 26390/95, § 27, 26 June 2001, Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006-... and Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003 ‑ XI ).

Applying these principles in the present case, the Court notes that the District Court expressly upheld the substance of the applicant ’ s length complaint when it stated that it was taking into account the length of the proceedings in reducing his sentence by half of the appropriate punishment. The Court of Appeal, concurring with the lower court that the “reasonable time” requirement had not been met, stated that it reduced the applicant ’ s sentence by two thirds of the appropriate punishment. It can therefore be said that the applicant was afforded express and quantifiable redress for the breach of the reasonable time requirement (see Beck v. Norway , cited above, §§ 27-29; also Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X). The Court notes the applicant ’ s arguments that the punitive nature of suspended imprisonment lies in the mere imposition of such a sentence, its length being of less significance, and that the reduction afforded to him lacked significance. The Court is not so convinced for the following reasons.

The Court notes that in t he Finnish criminal sanction s system there exist various forms of punishment and it is open to the cou rt s , as a rule within the limits set by the punishment stated in the relevant provision of the Penal Code, to impose either a fine or imprisonment (here leaving community service aside). If imprisonment is considered appropriate, the court can impose either a suspended or an immediate term of imprisonment. If, as in the present case, a suspended term of imprisonment is imposed, the court also sets a period during which the term is suspended. If the sentenced person commits an offence before that period has come to an end, the suspended prison term can be put into effect.

The Court observes that the Court of Appeal ’ s judgment discussed the various alternatives, finding that the applicant ’ s sentence could not be waived. Nor was a mere fine considered sufficient. Suspended imprisonment was therefore the next step on the criminal sanctions scale. The length of a prison sentence, be it a suspended term or an immediate one, is always of significance because the longer the sentence the higher the degree of stigma and, if the sentence is put into effect, a shorter suspended term of imprisonment naturally means less time spent in prison. According to established practice, the length of the period of suspension also reflects the length of the suspended prison term.

Summing up, the Court of Appeal ’ s judgment took into account the various possibilities and it explained how it afforded the applicant redress for the excessively lengthy proceedings. The Court, exercising its supervisory function, is satisfied that the redress given was sufficient.

Therefore, the applicant can no longer claim to be a victim of a breach of the “reasonable time” requirement as required by Article 34 of the Convention.

As to the Article 13 complaint, t he Court has found above that the applicant has been afforded redress for the breach of the “ reasonable time ” requirement . In the circumstances, this must be considered as constitut ing effective redress also for the purposes of Article 13 (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186 , ECHR 2006 ‑ ... ) .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court would nevertheless wish to draw attention to the fact that s ubject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their C onvention obligation under that provision. It has also stressed the importance of the subsidiarity principle so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that could otherwise, and in the Court ’ s opinion more appropriately, have been addressed in the first place within the national legal system (see Kudla v. Poland , §§154-55 , Reports of Judgments and Decisions 2000-XI ).

In this connection, it notes that, under Finnish law, the applicant at no stage of the proceedings was able to request a domestic court to expedite the conduct of the proceedings or to file a claim for compensation either during their course or following their termination (see, for example, Scordino v. Italy (no. 1) [GC], cited above , § 186).

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nico las Bratza Registrar President