FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48910/99 by Ari LAUKKANEN against Finland

The European Court of Human Rights (Fourth Section) , sitting on 1 June 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Mrs V. Strážnická , judges, and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Court of Human Rights on 15 February 1999,

Having regard to the Court's partial decision of 21 May 2002,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, Mr Ari Laukkanen, is a Finnish national, who was born in 1953 and apparently lives in Hämeenlinna without a permanent address. He is represented before the Court by Mr Jukka Juntunen, a lawyer practising in Hämeenlinna. The respondent Government are represented by Mr Arto Kosonen, director in the Ministry for Foreign Affairs.

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

On 18 August 1997 the applicant was arrested together with another person who was subject to an order of arrest. An unlawful gas pistol was found in the applicant's possession. Later the applicant became suspected of other, mainly property offences. Several bags were seized from the car in which the applicant was when arrested. The bags contained, inter alia , several car keys, some of which had been filed, and a skeleton key.

On 19 September 1997 the applicant was charged with several offences before the District Court ( käräjäoikeus, tingsrätt ) of Jämsä. This included a charge of being in possession of objects which could be used for committing property offences. This charge was based on Chapter 44, section 19 of the Penal Code ( rikoslaki, strafflag ) and read as follows:

“[The applicant] and M. [a co-defendant], who must be regarded as vagrants within the meaning of Chapter 44, section 19 of the Penal Code, had on 28 August 1997 in Mikkeli in their possession 27 car ignition keys, some of which had been filed, a skeleton key of Russian origin and other equipment suitable for lock picking.”

In the District Court the public prosecutor recalled that although the Act on Vagrants ( irtolaislaki, lagen om lösdrivare ; 57/1936) had been abolished, the concept of “a vagrant” was still maintained in Chapter 44, section 19, of the Penal Code. The prosecutor claimed that the applicant and his co-accused had both admitted to have been wandering around for weeks and maintained that they should be regarded as “vagrants” within the meaning of the Penal Code.

The applicant denied being “a vagrant”. During the proceedings the applicant also submitted, inter alia , that he had been living in Riihimäki in an apartment he had been renting since 1995 and that as one of the charges concerned a provision of law which could only be applied to people without a permanent address (i.e. to so-called vagrants), it could not be applied to him.

According to the public prosecutor Chapter 44, section 19, of the Penal Code was to be interpreted as applying to persons wandering around, i.e. “a vagrant”, and in possession of objects which could be used when committing a burglary (i.e. keys or skeleton keys). In the final hearing the public prosecutor further interpreted the said section as prohibiting a person  who regularly committed property crimes from possessing objects such as  skeleton keys.

On 17 October 1997 the District Court convicted the applicant on several counts, including the count under Chapter 44, section 19 of the Penal Code. The applicant was sentenced to one year and two months' imprisonment. The court also ordered that, inter alia , twenty-seven car keys and a skeleton key be confiscated from the applicant.

As to Chapter 44, section 19 of the Penal Code the District Court found the provision applicable and in force even though the comparable provision of the old Act on Vagrants had been abolished. According to the court, the notion of “vagrant” had its own independent meaning in the Penal Code. The relevant provision prohibited a person who was wandering around and living rough from being in the possession of certain equipment, if that equipment could, in the light of that person's behaviour and other circumstances, be considered as in his possession for the purpose of committing an offence.

The applicant's co-defendant was convicted on several counts. He was however not convicted of possession of skeleton keys pursuant to Chapter 44, section 19 of the Penal Code due to lack of evidence.

On 17 November 1997 the applicant appealed to the Court of Appeal, maintaining, inter alia , that he was not “a vagrant” as he had had a permanent address since January 1995 and could therefore not be convicted under Chapter 44, section 19 of the Penal Code.

On 17 February 1998 the Court of Appeal upheld the District Court's judgment. As to the applicant's conviction as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code, the Court of Appeal recalled that the old Act on Vagrants was revoked on 1 January 1987. According to the travaux préparatoires of the Act on Welfare for Intoxicant Abusers ( päihdehuoltolaki, lag om missbrukarvård ; 41/1986) , which replaced the Act on Vagrants, Chapter 44, section 19 of the Penal Code was  not to be amended. The Court of Appeal, thus, found that the revoked Act on Vagrants and the practice built on it had not lost its relevance for the interpretation of Chapter 44, section 19 of the Penal Code. According to Section 1, subsection 1(4) of the revoked Act on Vagrants “a vagrant” was, inter alia , a person who by his way of life endangered public order or safety. The Court of Appeal noted that the applicant had been convicted and sentenced to imprisonment for, inter alia, offences against property on numerous occasions during the last ten years. It therefore found that the applicant endangered public order and safety by his criminal way of life and was, accordingly, to be regarded as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code.

On 20 April 1998 the applicant applied for leave to appeal to the Supreme Court and requested that the conviction be quashed or, at least, that the case be referred back to the District Court or the Court of Appeal for an oral hearing. On 17 September 1998 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

Section 8 of the Constitution ( perustuslaki, grundlagen ; 731/1999) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined to be punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence. This section corresponds to section 6a (969/1995) of the repealed Constitution Act ( hallitusmuoto, regeringsformen ), in force at the relevant time.

Chapter 44, section 19 of the Penal Code (as in force at the relevant time) provided that a vagrant who was found with a lock pick or a skeleton key should be sentenced to a fine . The said provision was enacted in 1889, when the existing Penal Code entered into force, and has not been amended until 1 September 2002.

The Parliament passed a Bill for the amendment of Chapter 44 of the Penal Code (Parliament Reply 35/2002). The amendment entered into force on 1 September 2002. In this context, section 19 was repealed.

According to the new Chapter 28, section 12a (2002/400) of the Penal Code, concerning possession of tools used for burglary, a person who without an acceptable reason has in his/her possession a key to the lock of another or a skeleton key or other implement that can justifiably be suspected as intended for use primarily for entry into closed premises in the possession of another for the commission of an offence, shall be sentenced to a fine for possession of a burglary implement .

Section 1 of the Act on Vagrants provided until 31 December 1986 that a vagrant pursuant to the Act was, inter alia , a person fit to work who was unemployed without sufficient sustenance and wandered around from one locality to another without the purpose of seeking employment, and a person who acquired income by morally unacceptable or indecent means, or who by his or her way of life otherwise manifestly endangered public order, safety or morality.

The Committee which had been set up to assess the effects of repealing  the Act on Vagrants (Committee Report 1986:46, p. 96) held that “[section 19 in Chapter 44 of the Penal Code] was never intended to refer to “vagrants” within the meaning of the Act on Vagrants or the earlier Decree”. The Committee maintained that most of the referrals in the legislation to the concept of “a vagrant” had lost their meaning after the repealing of the Act on Vagrants. The concept of “a vagrant” in Chapter 44, section 19 of the Penal Code was however regarded as being originally independent from the concept pursuant to the Act on Vagrants. The Committee recommended that the provision should be clarified in connection with the general reform of the Penal Code.

At the relevant time there were some references in the legislation to the concept of “a vagrant”. Firstly, t he Decree containing Regulations for Rural Areas ( asetus joka sisältää maaseudun yleisen järjestyssäännön; förordning innefattande allmän ordningsstadga för landsbygden ; 219/28) was in force until 30 September 2003. Its section 39, subsection 2 provided, inter alia , that nobody was allowed to hide a vagrant in his/her home.

Secondly, the Act on the Publicity of Official Documents ( laki yleisten asiakirjain julkisuudesta; lag om allmänna handlingars offentlighet ; 83/1951) was in force until 30 November 1999, i.e., at the time of the offence in question. In the said Act there was an outdated reference to 'vagrants register' ( irtolaisrekisteri, registret över lösdrivare ), which register no longer existed.

In the Government's Bill No. 246/1984 on the Act on Welfare for Intoxicant Abusers ( päihdehuoltolaki, lag om missbrukarvård ; 41/1986), which replaced the Act on Vagrants, it is stated that characteristics of a vagrant are a drifting life, rejection of work, begging and an indecent life. It was held that the Act was largely based on the Decree on Vagrants from 1883 and that there were significant regional differences in applying the Act on Vagrants. It was maintained that the characteristics of a vagrant could no longer be regarded as appropriate criteria for admitting people to involuntary health care.

In the subsequent Government's Bill No. 17/2001 concerning the amendment of the provisions of Chapter 44 of the Penal Code it was held that “[T]he concept of “a vagrant” lacks an appropriate meaning in the contemporary language of a modern society.” It was also held that the existing provisions of Chapter 44, section 19 provided a certain justification for the prohibition of possession of burglary implements albeit it was regarded as limited in nature and, more particularly, was open to interpretation.

COMPLAINTS

1. The applicant complains, without invoking any Articles of the Convention, that he was regarded as “a vagrant” even though the Act on Vagrants was revoked in 1987 and even though he had a permanent address.

2. In his observations dated 22 October 2002 in reply to the Government's observations the applicant claims that his labelling as a vagrant discriminated against him with regard to his co-defendant who was not regarded as a vagrant and amounted to an expression of contempt against him.

THE LAW

1. The applicant complains that he was convicted as “a vagrant” even though the Act on Vagrants was revoked in 1987 and even though he had a permanent address. The Court has examined this complaint under Article 7 of the Convention. Article 7 reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

A. The parties' submissions

The Government submit that despite the archaic wording of Chapter 44, section 19 of the Penal Code, the provision has been in continuous application. Accordingly, there has been neither any new offence nor any offence newly interpreted or applied with the result that the act could not reasonably have been foreseen as being criminal at the time of its occurrence.

The Government point out that after the Act on Vagrants was repealed the concept of “vagrant” was maintained in several Acts and Decrees, although their provisions regarding vagrants have been either amended or repealed. In the context of the provisions of Chapter 44 of the Penal Code, an amendment concerning the possession of tools used for burglary was assessed as necessary in the Government Bill No. 17/2001. The existence of such a provision was not regarded as very important, but it was considered necessary, for the general objective of preventing crime, to provide for a possibility to order the confiscation of tools that could be used for burglary before the actual commission of any offence. It was observed in particular in the Government Bill that there was a need to prohibit, in certain cases, the possession of skeleton keys or special tools usable in opening locks. While the existing provision in Chapter 44, section 19 provided a justification for such a prohibition, it was limited in nature and open to interpretation. It was proposed in the Government Bill that the possession of tools used for burglary be established as a specific criminal offence (see Chapter 28, section 12a of the Penal Code above).

The Government emphasise that the relevant offence of which the applicant was accused fell within the scope of Chapter 44, section 19 of the Penal Code which was enacted in 1889, i.e. 47 years before the enactment of the Act on Vagrants, and which provision also remained as such after the repeal of the Act on Vagrants in 1986 until 1 September 2002. Thus, the repeal of the Act on Vagrants had no implications for the interpretation or application of the provisions of the Penal Code and the kind of acts that would constitute an offence were sufficiently clearly indicated by the law.

In the Government's opinion, it was only the word “vagrant” that made the provision in Chapter 44, section 19 of the Penal Code somewhat peculiar. However the word “vagrant” should be read in its context within the Penal Code, keeping in mind the aim of section 19. That provision, as part of the criminal law system, was independent from the system of social welfare under the Act on Vagrants. Thus, the meaning of the concept of “vagrant” in the Penal Code should be given an autonomous interpretation.

The Government maintain that the Government Bill ( HE 94/1934 ) for the enactment of the Act on Vagrants was based on the premise that the Act would not apply to conduct for which a sanction was provided in another statute. This referred, in particular, to section 19 in Chapter 44 of the Penal Code. Thus, instead of being associated with the Act on Vagrants, the existing concept of “vagrant” in Chapter 44, section 19 of the Penal Code must rather be seen as an equivalent to the new provision of section 12a in Chapter 28 of the Penal Code, according to which the possession of tools used for burglary is only punishable in cases where they are held in one's possession without an acceptable reason.

The Government further note that the interpretation given by the District Court and the Court of Appeal to the provision in question followed the normal practice of interpretation of law by the judiciary, taking into account the wording, the use of the same wording in other contexts and the objective of the provision to the extent that it remains within the limits of its wording. Nor could the courts' interpretation be considered arbitrary or as having the effect of changing the scope of the offence for which the applicant was convicted to an extent which was unforeseeable by persons in his position. The applicant was convicted because of his suspicious behaviour, namely, his possession of instruments of crime without good reason and that conviction was imposed in accordance with the provision in Chapter 44, section 19 of the Penal Code, with the aim of preventing crime.

The applicant objects to the Government's assertion that during the domestic proceedings he admitted to have been wandering around Finland for weeks. The applicant claims to have had official lodging and sustenance and submits that the Government have not brought up any fact supporting the notion of possible vagrancy. He further maintains that he did not have in his possession skeleton keys or a lock pick.

In the applicant's opinion the fact that the Act on Vagrants had been applied in other cases as alleged by the Government did not constitute proof that the Act continued to provide valid grounds for such application. It might in fact be asserted, as an aggravated circumstance, that the domestic authorities had erroneously applied the Act on Vagrants for years.

The applicant also argues that where lawyers disagree on the application of the Act on Vagrants it is even more difficult for an ordinary individual to anticipate when he would be regarded as a vagrant. Nor could he have been aware of the future legislative amendments (implemented later) to which the Government refer. He was therefore subject to incomprehensible demands.

The applicant further submits that Government's assertion that a repealed Act can continue to be applied violates the requirements of rule of law. In his opinion the whole concept of “a vagrant” was repealed in domestic law. He therefore could not have foreseen that he was not allowed to be in possession of his own tools and keys.

B. The Court's assessment

The Court notes that while its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 45). Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis , Kopp v. Switzerland , judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 541, § 59).

The Court reiterates fundamental principles laid down in the Court's case-law on Article 7 of the Convention, particularly in S.W. v. the United Kingdom and C.R. v. the United Kingdom (judgments of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 34-36, and Series A no. 335-C, pp. 68-69, §§ 32-34, respectively):

“The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.

Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, § 52), Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. The Court thus indicated that when speaking of 'law' Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, § 37).

However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in ... the ... Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”

In the light of the above principles concerning the scope of its supervision, the Court observes that it is not its task to rule on the applicant's individual criminal responsibility or the facts disputed by the applicant (namely whether he in fact had a permanent address, was  wandering around or had in his possession skeleton keys or lock picks), those being primarily matters for the assessment of the domestic courts. It must rather consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant's acts, at the time when they were committed, constituted offences defined with sufficient accessibility and foreseeability by domestic law (see Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001 ‑ II).

The Court recalls that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland , judgment of 28 March 1990, Series A no. 173, p. 26, § 68). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom , cited above, § 37).

The Court must accordingly ascertain whether on the facts of this application the text of the statutory rule read in the light of the accompanying interpretive case-law satisfied this test at the relevant time (see Cantoni v. France , judgment of 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V, §§ 31-32).

In the present case the Court recalls that the applicant was convicted under Chapter 44, section 19 of the Penal Code for being in possession of equipment that could be used for burglary. The text of the provision in question, which dated back to 1889, provided for the imposition of fines on vagrants found in possession of certain items. No definition of “vagrant” was contained in the Penal Code itself. The later Act on Vagrants which had been passed in 1936 and had contained more detailed provisions concerning vagrants had been repealed prior to the applicant's conviction.

The Court observes however that the repealing of the Act on Vagrants left Chapter 44, section 19 of the Penal Code unchanged and it has not been shown that this can be regarded as affecting the application of that provision. The Penal Code was enacted prior to the Act on Vagrants –which Act in any event belonged principally to the sphere of social legislation – which supports the Government's contention that the concept of “a vagrant” was independent of the definition given in the Act on Vagrants. In that context, it may be noted that the Committee examining the effects of the repealing of the Act on Vagrants held in its report (1986:46) that while most of the referrals in the legislation to the concept of “a vagrant” had lost their meaning after the repealing of the Act on Vagrants, the concept of “a vagrant” in Chapter 44, section 19 of the Penal Code was originally independent from the concept reflected in the Act on Vagrants. The fact that the Committee nevertheless recommended that the provision should be clarified in connection with the general reform of the Penal Code does not detract from this position.

The Court accepts the Government's contention that the concept of “a vagrant” was maintained for a while in several Acts and Decrees after the repealing of the Act on Vagrants. This fact however is not directly relevant for the assessment of the present application as most of those provisions were not in force at the time of the applicant's offence and those exceptions (the Act on the Publicity of Official Documents (83/1951, section 14) and the Decree containing Regulations for Rural Areas (219/1928, section 39)) did not contain any relevant definition of the term “vagrant”.

More significantly, the Court notes that, according to the information submitted by the respondent Government, Chapter 44, section 19 of the Penal Code has been applied frequently in practice up to recent times.

The Court is satisfied that in the domestic interpretation of the relevant Penal Code provision the emphasis had gradually shifted to the element of possession of implements for illegal purposes such as burglary. The reference to being “a vagrant” may be regarded as having been de facto replaced or subsumed by that element. It is evident from the relevant Government Bill (HE 17/2001) that the purpose of the new Chapter 28, section 12a of the Penal Code was to replace the previous Chapter 44, section 19 of the Penal Code and in that connection it was maintained that the purpose of the provision was to prevent property crimes by criminalising the possession of burglary implements in certain cases, namely when there was reason to believe that those implements were principally for use in burglaries or similar offences. The fact that the Court of Appeal maintained in the applicant's case that the practice built on the Act on Vagrants had not lost its relevance for the interpretation of Chapter 44, section 19 of the Penal Code, shows, in the Court's opinion, that regard was had not only to the wording of the Penal Code's provision but also to the general case-law in the matter.

In the light of the above considerations, the Court concludes that although the wording of Chapter 44, section 19 of the Penal Code was to a certain degree outdated, it nevertheless enabled the applicant to foresee, if need be with the assistance of the courts' interpretation of it, what acts and omissions would make him criminally liable. The rules of criminal liability in this matter may be regarded as having been gradually clarified through judicial interpretation from case to case in a manner which was consistent with the essence of the offence and could reasonably be foreseen.

The Court therefore rejects the applicant's complaint as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention.

2. The applicant submits in his observations dated 22 October 2002 in reply to the Government's observations that his labelling as a vagrant discriminated against him with regard to his co-defendant who was not regarded as a vagrant and amounted to an expression of contempt against him. The Court notes that the applicant did not raise the issue of discrimination before the domestic courts. He has therefore failed to exhaust domestic remedies in this respect as required by Article 35 § 1 of the Convention. Insofar as he complains that the use of the term was derogatory, it is not apparent that this complaint discloses any appearance of a violation of the provisions of the Convention. It must therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The Court consequently rejects both these complaints pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the rest of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President