FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66899/01 by Pertti RUOHO against Finland

The European Court of Human Rights ( Fourth Section) , sitting on 3 February 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 11 January 2001,

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 is a Finnish national , born in 1952 and living in Rome, Italy. He was represented before the Court by the late Mr Reino Lunden, a lawyer practising in Helsinki and subsequently by Mr Jukka Lunden, also a lawyer in Helsinki.

The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

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

On 30 March 1993 applicant was interrogated being suspected of debtor’s dishonesty. He had acted as a financial consultant in connection with transactions between two companies, Osakeyhtiö Six and Moniplan Oy . On 30 December 1988 Osakeyhtiö Six had sold to Moniplan Oy   the shares of its subsidiaries Six- Myynti Oy (later Seroponex Oy ) and Aromimauste Oy (later Cenoporex Oy ). The above-mentioned sales contract had later been declared null and void in civil proceedings.   

On 15 December 1993 the applicant was charged with two counts of aiding and abetting debtor’s dishonesty. At the same trial the owners of Osakeyhtiö Six and Moniplan Oy were charged with two counts of debtor’s dishonesty. The case was heard on 26 occasions before the District Court ( käräjäoikeus , tingsrätten ) of Helsinki.

On 10 December 1997 the Helsinki Tax Rectification Committee ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden found Seroponex Oy and Cenoporex Oy liable to pay certain taxes. On 11 March 1999 the County Administrative Court ( lääninoikeus , länsrätten ) of Uusimaa dismissed the companies’ appeals.

At the 23rd hearing on 23 June 1999 the case was adjourned in anticipation of the outcome of the taxation proceedings involving Cenoporex Oy , Seroponex Oy and Fryckman-Yhtiö Oy which companies had appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ). In two decisions of 2 December 1999 the court dismissed the appeals.

In the criminal proceedings the District Court took note of the above decisions on 9 February 2000 and deferred judgment until 13 June 2000, when it found the applicant guilty on both counts. He was sentenced to a suspended term of imprisonment of eight months and ordered to pay damages jointly and severally with two other convicted persons.

On 23 November 2001 the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki dismissed the applicant’s appeal.

On 28 June 2002 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law and practice

Under Chapter 16, section 4 of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ), as in force at the relevant time  (Act no. 1052/1991), a district court was to adjourn criminal proceedings on request, for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment. The court could not adjourn criminal proceedings of its own motion save for special reasons. If a party considered that civil or criminal proceedings had been delayed unjustifiably, a procedural complaint ( kantelu , klagan ) could be lodged with the court of appeal within 30 days from the adjournment (subsection 2). If it was important for the resolution of the case that an issue under examination in other proceedings be resolved first, or if there was another long-term impediment to the case being examined, the court could adjourn the case until such time that the impediment has ceased to exist (section 5). These provisions were repealed with effect from 1 October 1997.

In a decision of 16 October 1997 (no. 3755) the Helsinki Court of Appeal, dismissed a complaint filed under Chapter 16, section 4 (2) of the Code of Judicial Procedure. The court considered that an adjournment in a civil case had not been unjustified, inter alia in anticipation of the outcome of a pending criminal case involving the same party.

In a decision of 12 September 1995 (no. 3870), the Turku Court of Appeal, also applying Chapter 16, section 4 (2) of the Code of Judicial Procedure, held that an adjournment in a criminal case had not been unjustified, given that the prosecutor had indicated that he was going to adduce further evidence and considering that the defendant had also requested an adjournment.

COMPLAINTS

1. The applicant complains that the criminal proceedings were excessive in length.

2. The applicant further complains that the minutes of the criminal proceedings included false information.

THE LAW

1. The applicant complains that his trial was unfair and excessively lengthy. The related tax proceedings should have been decided before the criminal proceedings against him.

The Court has examined these grievances under Article 6 § 1 of the Convention which reads, in so far as relevant, as follows:

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

The Government submit that the applicant did not exhaust domestic remedies as he failed to complain against any of the District Court’s sixteen decisions between 15 February 1993 and 10 June 1997 whereby it adjourned the case. Under the Code of Judicial Procedure as in force at the relevant time a party could complain to the appellate court against an adjournment. The Government refer to the domestic practice outlined above which they consider show the effectiveness of that remedy for the purposes of Article 35 of the Convention.

In the alternative, the Government argue that the length of the proceedings was reasonable, given the complexity of the case and the significant number of other related proceedings. They accept that the proceedings started on 30 March 1993, when the applicant was first questioned as a suspect. The courts nevertheless acted with due diligence and there were no unjustified periods of inactivity for which they could be responsible, whereas the applicant and his co-defendants significantly prolonged the proceedings. The prosecutor and the complainants had left the case for decision already on 2 April 1996 but the proceedings were adjourned at the request of the defendants. Most delays were caused by their submission of further evidence, the need to await the outcome of the taxation proceedings and the need to conduct additional investigations at the request of the defendants. The applicant requested adjournment on four occasions. He also made several objections of a procedural nature not all of which could be considered appropriate and which may have been aimed at delaying the proceedings. For example, he demanded that it be placed on record that he required the court to comply with the law. He also requested that the proceedings be re-commenced due to the changed composition of the court following the death of the presiding judge. This request was not based on the legislation in force at the time.

The applicant was neither present nor represented at the last six hearings before the District Court in spite of being threatened with procedural fines. Moreover, the documents which the Court of Appeal had dispatched to the applicant’s address in Italy were returned to the sender, the applicant having refused to indicate his new address.

The Government furthermore note that an adjournment was requested eight times by the prosecutor and three times by the tax authority, whereas the case was adjourned five times of the District Court’s own motion, in particular in anticipation of the outcome of the taxation proceedings. That outcome could have affected the consideration of the criminal case to the defendants’ advantage and those postponements therefore served exclusively the defendants’ interests.

The Government finally note that at no stage of the proceedings was the applicant under arrest or detained.

The applicant contends that the remedy provided by Chapter 16, section 4, subsection 2, of the Code of Judicial Procedure, as in force at the time, did not meet the requirements of a remedy within the meaning of Article 13 whereby he could have had the proceedings accelerated.

As to the merits of his complaint, the applicant maintains that the proceedings were prolonged by the fact that the District Court decided to await the outcome of the taxation proceedings.

As for the Government’s preliminary objection, the Court has just found a violation of Article 13 in a case where the applicant had no effective remedy under Finnish law whereby he could have enforced his right to a hearing within a reasonable time ( Kangasluoma v. Finland , no. 48339/99, § 49, 20 January 2004). In that case as well the Government had referred, inter alia , to the possibility of filing a complaint under Chapter 16, section 4 of the Code of Judicial Procedure. In these circumstances the remedy in question cannot be considered one which the present applicant was required to exhaust for the purposes of Article 35. The preliminary objection must therefore be dismissed.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of this complaint is required.

2. The applicant further complains that the minutes of the criminal proceedings included false information.

The Court has considered this grievance as a matter of alleged unfairness under the above-cited Article 6 § 1 but finds the complaint unsubstantiated.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of the proceedings against him;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President