FOURTH SECTION

PARTIAL 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 29 May 2007 as a Chamber composed of:

Sir Nicolas Bratza , President, Mr J. Casadevall , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä , judges, and Mr s F. Aracı , Deputy Section Registrar ,

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

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 is represented before the Court by Mr J. Hakanen, a lawyer practising in Turku .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents i n the case 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 - months ’ intervals.

On 28 June 2001 a Spanish court acceded to the request of the Finnish Government 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 change 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 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 as time-barred one of the charge s . 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 would reduce 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 case is still pending before the Court of Appeal.

COMPLAINTS

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

2. He also complained under Article 6 § 2 that the reasoning in the District Court ’ s decision of 9 February 2004 to the effect that any unreasonable length of the proceedings would be taken into account when judgment was given was in violation of the presumption of innocence. He considered that this meant in essence that the court had started from the idea that he would eventually be found guilty and that any redress could be given by mitigating his sentence.

3. Lastly, he complained under Article 13 about the lack of an effective remedy as regards the above-mentioned complaints.

THE LAW

The applicant alleged a violation of the right to trial within a “reasonable time”, a breach of the presumption of innocence and the absence of effective remedies.

Article 6 §§ 1-2 read insofar as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

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. Insofar as the applicant complained about the length of the proceedings and the lack of an effective remedy in that connection, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. Insofar as the applicant alleged a violation of the presumption of innocence and that he had no effective remedy in that connection, the Court notes that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty (see, mutatis mutandis , Allenet de Ribemont v. France , judgment of 10 February 1995, Series A no. 308, p. 16, § 35). Whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see, inter alia , Adolf v. Austria , judgment of 26 March 1982, Series A no. 49, pp. 17-19, §§ 36-41).

In the present case the impugned reasons were given by the District Court in the course of criminal proceedings when it ruled on the applicant ’ s request to declare the case inadmissible owing to the length of the proceedings. The Court considers that the District Court ’ s reasoning cannot be construed as suggesting that the District Court had at that stage formed and enunciated an opinion on the applicant ’ s guilt. In these circumstances the Court concludes that the facts of the case do not disclose any indication of a violation of the presumption of innocence.

Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The Court has above found that there is no indication of a violation of the presumption of innocence. It follows that the applicant does not have an “arguable claim” and that his complaint does not therefore attract the guarantees of Article 13.

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

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the applicant ’ s complaint s concerning the length of the proceedings and the lack of an effective remedy in that connection ;

Declares the remainder of the application inadmissible.

Fato ş Ara c ı Nicolas B ratza Deputy Registrar President