FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34147/96 by Kenneth LEHTINEN against Finland

The European Court of Human Rights (Fourth Section) , sitting on 13 and 27 January 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 24 October 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 Kenneth Lehtinen, is a Finnish national, who was born in 1950 and lives in Järvenpää . In the proceedings before the Court t he respondent Government are represented by 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 11 October 1993 the Central Criminal Police ( keskusrikospoliisi , centralkriminalpolisen ) interrogated the applicant as a suspect in the offence of aiding and abetting an aggravated embezzlement. The pre-trial investigation was concluded on 15 December 1993 and the file was transmitted to the public prosecutor on 17 December 1993.

The indictment was served on the applicant on 14 March 1996. On 9 September 1996 criminal proceedings were instituted against him and three other defendants before the District Court ( käräjäoikeus , tingsrätt ) of Tuusula . The prosecutor charged two of them with aggravated embezzlement and the applicant and another co-defendant with aiding and abetting the said offence between 9 June and 22 August 1989. The complainant, now a limited liability company to which the ownership of a bank group had been transferred, joined the charges and presented an accessory claim for damages and legal costs. All defendants denied the charges.

On 10 September 1996 the prosecutor requested an adjournment in order to present further evidence. The case was adjourned until 21 November 1996, when seven prosecution witnesses gave evidence. The case was then adjourned until 30 January 1997 so as to enable the prosecutor to call additional witnesses.

At the third hearing the District Court heard evidence from three further prosecution witnesses. The case was then adjourned until 21 March 1997.

At the fourth hearing a witness called by one of the defendants gave evidence. The prosecutor and one of the defendants requested a further adjournment which was granted.

At the fifth hearing on 23 May 1997 the District Court took evidence from a prosecution witness and three defence witnesses. At the request of one of the defendants the case was adjourned until 27 June 1997.

At the sixth hearing the District Court heard two further defence witnesses. One of the defendants asked for a further adjournment in order to present additional evidence.

At the seventh hearing on 15 August 1997 a further defence witness gave evidence. At the request of two of the defendants the case was adjourned until 26 September 1997.

At the eighth hearing two defence witnesses gave evidence. The applicant requested an immediate dismissal of the charge against him, arguing that it was not detailed enough and did not describe the essential elements of the offence he had been charged with. The District Court having refused his request, he asked that the proceedings be suspended in anticipation of the outcome of his appeal to the Court of Appeal ( hovioikeus , hovrätt ) of Helsinki in a related matter. The District Court refused this request as well but adjourned the case until 13 November 1997 in order to allow the parties to submit their closing arguments.

At the ninth hearing the applicant requested that the complainant be ordered to reimburse his legal costs.

In its judgment of 13 November 1997 the District Court acquitted all defendants and dismissed the complainant’s accessory claim for damages. Noting that the complainant had merely joined the charges brought by the public prosecutor, the court also dismissed the applicant’s claim that the complainant be ordered to reimburse his legal costs.

The prosecutor, the complainant, the applicant and a co-defendant appealed to the Court of Appeal which rejected their appeals on 31 December 1998.

The applicant’s acquittal acquired legal force on 2 March 1999, when the prosecutor’s and the complainant’s deadline for seeking leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen ) expired. The applicant and a co-defendant sought similar leave to appeal against the Court of Appeal’s refusal of their cost claim. Such leave was refused on 28 September 1999.

B. Relevant domestic law

Under Chapter 16, section 4 (2) of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken , as amended by Act no. 1052/1991 and in force at the relevant time) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint ( kantelu , klagan ) with a Court of Appeal within 30 days from the date of the adjournment. Under the said provision the district court could adjourn the case upon request by a party, for example if the said party wished to adduce further evidence. The court could not adjourn the hearing proprio motu save on special grounds.

The provision in question was repealed with effect from 1 October 1997, when new provisions generally prohibited adjournments.

COMPLAINTS

1. In his initial application, which he maintained on 30 January 1999 following the Court of Appeal’s judgment acquitting him, the applicant complained that the length of proceedings in his case had exceeded a reasonable time. He invoked Article 6 § 1 of the Convention in this respect.

2. In his initial application, which he maintained on 2 March 1999, the applicant also complained under Article 6 § 3 (a) of the Convention that he had not been informed in detail of the cause of the accusations against him.

THE LAW

1. The applicant complains that the length of proceedings against him exceeded a reasonable time. He invokes Article 6 § 1 of the Convention which reads, in so far as relevant to the present case, 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 failed to exhaust domestic remedies as between 10 September 1996 and 26 September 1997 he did not object to, let alone appeal against, any of the District Court’s decisions to adjourn the proceedings. Under the Code of Judicial Procedure as in force at the relevant time a party could complain to the appellate court against an adjournment. At no stage of the domestic proceedings did the applicant complain about the length of the proceedings.

In the alternative the Government consider the complaint manifestly ill-founded. The proceedings before the District Court lasted one year and two months, if calculated from the first hearing - or one year and eight months, if calculated from the date of his having been summoned. The length of the proceedings before the Court of Appeal lasted one year and almost two months. The whole of the court proceedings thus lasted two years and almost ten months at the most, whereas the pre-trial investigation lasted approximately five months.

The proceedings concerned an extensive and difficult case of suspected financial offences committed by four defendants. The taking of evidence, for example, took several days. At the eighth hearing the applicant aimed at delaying the issuing of the judgment by requesting a further adjournment. The District Court dismissed that request, invoking the defendants’ rights and the need to consider the case within a reasonable time. The applicant presented numerous other procedural claims during the proceedings. Thus, his and the co-defendants’ conduct significantly affected the length of the proceedings.

The Government further note that at no stage of the proceedings was the applicant detained on remand as a suspect of the particular offence in question.

It is the Government’s conclusion that the courts acted with due diligence and that the proceedings were not unreasonably lengthy, considering the complexity of the case.

The applicant contends having exhausted the available and adequate domestic remedies. At several of the hearings before the District Court he demanded in vain that judgment be rendered. In the practice established by that time the procedural appeal referred to by the Government was reserved for complaints against a decision to suspend the proceedings in anticipation of the outcome of other proceedings. Nor does the Ombudsman or the Chancellor of Justice intervene in pending proceedings with a view to having them accelerated.

The applicant maintains that for the purposes of Article 6 § 1 the proceedings against him commenced with his interrogation in October 1993, when he was informed of the suspicions against him. Thereafter his enterprise was no longer able to obtain credit from its bank which terminated their co-operation. The proceedings ended with the Supreme Court’s decision of September 1999, having lasted almost six years. The time which the prosecutor needed for considering whether to bring charges was particularly excessive (two years and four months) and the Government have failed to explain why. It also took the District Court one year and eight months to hear the case and render judgment. The facts underlying the charges were not complex and the applicant’s defence strategy did not delay the proceedings unduly.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The six months’ rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six months’ rule solely because a Government have not made a preliminary objection based on it ( Posti and Rahko v. Finland , no. 27824/95, § 38, ECHR 2002 ‑ VII).

The subject-matter of the present complaint is the length of the proceedings for the determination of the criminal charge against the applicant. That charge was finally determined by the Court of Appeal in its judgment of 31 December 1998 which acquired legal force on 2 March 1999. The applicant filed his grievances with the European Court already when the proceedings were pending before the District Court and maintained his complaints within six months from the Court of Appeal’s judgment. Accordingly, the application has been introduced and pursued in accordance with the six-month rule prescribed in Article 35 § 1. 

As for the Government’s preliminary objection, the Court has just found a violation of Article 13 in that 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 has also complained under Article 6 § 3 (a) of the Convention that he was not informed in detail of the cause of the accusations against him. The said provision reads as follows:

“Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...”

Under Article 34 of the Convention the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be “the victim of a violation” by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. Pursuant to the Court’s case-law an acquitted defendant cannot however claim to be a victim of violations of the procedural guarantees of Article 6 which, according to him, took place in the course of the criminal proceedings against him. In such cases the alleged violation of Article 6 is rectified by the acquittal (see, for example, V.Q. v. Italy ( dec .), no. 44994/98, 14 March 2002).

The Court notes that the present applicant, who complains that he was not informed in detail of the cause of the accusations against him, was acquitted by both court instances examining those charges. In these circumstances he cannot claim status as a victim of a violation of his right to a fair trial.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

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.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President