FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10443/02 by Marko KUSTILA and Jukka OKSIO against Finland

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

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

Having regard to the above application lodged on 24 August 2001,

Having deliberated, decides as follows:

THE FACTS

The first applicant is Mr Marko Kustila, a Finnish national, who was born in 1962 and was serving a prison sentence at the time of the application. The second applicant is Mr Jukka Oksio, a Finnish national who was born in 1967 and was serving a prison sentence at the time of the application. They are represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere, Finland.

A. The circumstances of the cases

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

1. The first applicant

The first applicant had been detained pending a criminal trial concerning – amongst others – two serious drug offences. On 5 July 2000, at the end of the hearing, the District Court ( käräjäoikeus , tingsrätten ) of Jyväskylä informed the parties that it had decided to reserve the judgment until 12 July 2000. The public prosecutor demanded a sentence of seven years imprisonment and that the first applicant should remain in detention pending the delivery of the judgment. The District Court ordered that the first applicant be detained pending the delivery of the judgment, basing the detention on Sections 26 and 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation ( pakkokeinolaki , tvångsmedelslag ; 450/1987). It held, inter alia , as follows:

“Because the District Court has in its decision after the end of the principal hearing notified the date of the reserved judgment, the grounds for K.’s [the first applicant’s] detention are based on the principles supporting section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.

K., who has been detained throughout from 21 May 2000, has been charged with offences for which, if proven guilty as charged, he will clearly, according to normal case law, be sentenced to imprisonment for longer than two years.

Without prejudice to the length of the final imprisonment sentence and taking into consideration that the reserved judgment will be given in less than one week’s time, the arguments presented in favour of K. do not disclose that his detention is excessive.”

On the same day (5 July 2000) the first applicant applied to the Court of Appeal ( hovioikeus , hovrätten ) of Vaasa , claiming that his detention was unlawful and demanding the District Court’s decision to be quashed as well as his immediate release. He claimed that the District Court could not have based its decision on Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation, because he had not yet been sentenced as required by that provision. He also maintained that Finnish legislation did not contain any basis for detention of a defendant in a case where the hearing had been closed and the judgment reserved and invoked Article 5 § 1 of the Convention.

On 7 July 2000 the Court of Appeal of Vaasa quashed the District Court’s decision to detain the first applicant and ordered his immediate release. The Court of Appeal reasoned its decision, inter alia , as follows:

“Because K. had not been sentenced at the end of the principal hearing on 5 July 2000, he could not have been ordered to remain detained pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.”

On 12 July 2000 the District Court of Jyväskylä sentenced the first applicant to five years’ imprisonment. It also ordered the arrest of the first applicant, who had gone missing after his release on 7 July 2000.

On 11 July 2000 the first applicant meanwhile applied to the District Court of Tampere , claiming compensation under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. The District Court rejected the applicant’s claims on 10 November 2000, referring to section 2 of that Act. It held, inter alia , as follows:

“It is undisputed in the case that K. was detained during the time mentioned in his application for summons. It is also undisputed that the Court of Appeal of Vaasa released K. because it was not possible to keep K. detained on the grounds that the public prosecutor put forward and on which the District Court had made the decision, i.e. pursuant to Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation.

Therefore, the detention was not based on the grounds on which the public prosecutor and the District Court justified the detention.

...

Taking into account the seriousness of the offences that underlie the detention of K., his guilt as stated in the judgment and the length of the imposed penalty, it would be excessive to oblige the State to pay K. compensation for the deprivation of his liberty. Compensation would be excessive also because he was deprived of his liberty for only two days and because this time has been subtracted from the sentenced imprisonment according to Section 11 of Chapter 3 of the Criminal Code. Because of K.’s guilt the deprivation period cannot be deemed to cause him such mental suffering as would be the case if an innocent person had been detained.”

The Court of Appeal of Turku upheld the District Court’s judgment on 24 April 2001. The Court of Appeal reasoned its judgment, inter alia , as follows:

“As the District Court has maintained, there were no legal grounds for K.’s detention during 5 July – 7 July 2000. However, on 12 July 2000 K. was sentenced to five years’ imprisonment for the crimes that initially led to his detention, and ordered to be taken into custody. K. has subsequently been avoiding the implementation of the sentence and a warrant for his arrest has been issued. Therefore it would be excessive to oblige the State to pay him compensation for his short term detention. Further, because it cannot be maintained that K.’s liberty has been restricted in an arbitrary fashion or without justification, he is not entitled to compensation on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms either.”

In a letter dated 11 November 2000 the first applicant asked the police to investigate whether the judge and laymen of the District Court of Jyväskylä had committed a crime when they ordered his detention.

On 14 November 2000 the police sent a report to the Chancellor of Justice and informed him that a criminal investigation would not commence before the Chancellor of Justice had examined the matter.

On 18 April 2001 the Deputy Chancellor of Justice noted in his decision that there was no directly applicable statute in the law concerning detention of an accused by a court when reserving a judgment to a later date. He concluded however that both the District Court and the Court of Appeal had erred as the defendant could, and should have, been detained, under Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation. According to the Deputy Chancellor of Justice, that interpretation of law had been accepted by the Court of Appeal in similar cases. He did not find any grounds for prosecution in the case.

2. The second applicant

The second applicant was serving a term of imprisonment in an open prison when on 23 September 1997 he was taken in police custody to a police station as suspected of another crime. Some time later he was transferred to the Hämeenlinna Central Prison, from which he was transferred to a prison in Köyliö on 5 November 1997. On 31 December 1998 a public prosecutor decided not to press further charges against the second applicant.

On 31 May 1999 the second applicant filed a suit against the State under the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons. He demanded, inter alia , compensation for non-pecuniary damages caused by his detention from 23 September 1997 to 5 November 1997. On 18 October 1999 the District Court rejected the second applicant’s claims. It reasoned its decision, inter alia , as follows:

“Even though [the second applicant’s] liberty and possibilities to act were de facto restricted to a greater degree due to his transferral to the police jail compared to the conditions in an open prison establishment, [the second applicant] was also nevertheless a prisoner in the open prison.

As [the second applicant] was already imprisoned and as transferral to a different kind of prison does not require compensation pursuant to the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons, and as [the second applicant] cannot be considered as equivalent to a detained or convicted innocent person or to a person subject to an injunction order, the District Court holds that the State is not obliged to pay [the second applicant] compensation for any possible non-pecuniary damage caused by the transferral to a police jail.”

The second applicant complained to the Court of Appeal which, on 5 October 2000, upheld the District Court’s judgment. The Supreme Court refused the second applicant leave to appeal on 30 July 2001.

B. Relevant domestic law

Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (693/1997), as in force at the time of the events, provided:

“When the court cancels or defers the principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained.”

Section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation was amended on 27 June 2003 (646/2003). The new section entered into force on 1 January 2004 and it provides:

“When the court cancels or defers the principal hearing or orders a new principal hearing in a case where the defendant has been detained, the court has to examine and assess whether there are reasons to keep the defendant detained. However, the question of detention does not have to be re-examined or reassessed during the time when the principal hearing has been deferred due to a mental examination of one of the defendants in the case. The court must also rule on the question of detaining the defendant, if the court does not deliver its judgment directly after the principal hearing.”

Section 26 of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) states:

“The court may detain a person convicted and sentenced to imprisonment, or order the continuation such a person’s detention, if:

(1) the defendant has been sentenced to at least two years imprisonment.”

Section 26a of Chapter 1 of the Act on Coercive Means of Criminal Investigation (213/1995) provides:

“Nobody may be detained or ordered to continue to be detained if the detention would be excessive due to the nature of the case, the suspect’s or sentenced person’s age or due to other personal circumstances of the person in question.”

Section 1 of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons (1974/422) provides:

“A person who has been arrested or detained as a suspect for a crime has a right to compensation from the State, if:

(1) a criminal investigation has ended without a criminal charge being brought;

(2) a criminal charge is withdrawn or dismissed;

(3) he or she has been found guilty of an offence which did not justify arrest or detention, or;

(4) there was no legal basis for the arrest or detention.

There is no right to compensation if the deprivation of liberty has not exceeded twenty-four hours.”

Section 2 of the above-mentioned Act (1974/422) states:

“If the criminal suspect has tried to escape or otherwise avoids the pre-trial investigation or the trial, destroys evidence or in other ways hampers with the investigation, he or she will not be paid compensation pursuant to subsection 1, unless his or her conduct is excused on grounds of mental shock, mistake or other similar reasons. Further, compensation will not be paid if the suspect has by false confession or otherwise deliberately given cause for his or her arrest or detention, or if paying the compensation would in view of the circumstances of the case be otherwise unjustified.”

COMPLAINTS

A. The first applicant

1. The first applicant complains that he was unlawfully deprived of his liberty from 5 July 2000 to 7 July 2000 and that he has not received any compensation for this deprivation of liberty. He invokes Article 5 of the Convention.

2. The first applicant also complains, under Article 13 of the Convention, about the lack of an effective remedy, as the Deputy Chancellor of Justice decided not to press charges against the District Court judges and as there was subsequently no criminal investigation in the matter.

B. The second applicant

The second applicant complains that his right to liberty has been restricted, invoking Article 5 § 3 and 5 of the Convention. He also complains that he was denied compensation because of his status as a prisoner, invoking Article 14 of the Convention.

THE LAW

I. THE FIRST APPLICANT

1. The first applicant complains of unlawful deprivation of liberty from  5 to 7 July 2000, invoking Article 5 of the Convention. The Court has examined the complaint under Article 5 § 1, which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

In so far as the applicant complains about the decision of 5 July 2000 to detain him pending the delivery of the judgment, the Court notes that upon the first applicant’s complaint, the Court of Appeal quashed the decision and ordered him to be released on 7 July 2000. In these circumstances the question arises whether the first applicant can still claim to be a victim within the meaning of Article 34 of the Convention.

The Court recalls that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, e.g. the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

Turning to the facts of the present case, the Court notes that the Court of Appeal did not in its judgment on 7 July 2000 expressly state that the first applicant had been unlawfully detained when it ordered his release. In the Court’s view the Court of Appeal did, however, come close to such an acknowledgement as it stated, inter alia , that “... he could not have been ordered to remain detained pursuant to ...” The Court also notes that the District Court held in its decision on 10 November 2000 dismissing the first applicant’s request for compensation for the deprivation of his liberty that “... the detention was not based on the grounds on which the public prosecutor and the District Court justified the detention.” On 24 April 2001 the Court of Appeal further held in the same matter that “[A]s the District Court has maintained, there were no legal grounds for K.’s detention during 5 July – 7 July 2000.”

The Court finds that these statements in the domestic courts’ reasoning, at least when considered as a whole, can be regarded as a sufficiently clear acknowledgement in substance that the first applicant had indeed been wrongly detained.

It remains to be decided whether the domestic authorities afforded the first applicant redress for his detention and if so, whether the redress can be considered sufficient in view of the rejection of the first applicant’s claim for compensation for the illegal deprivation of liberty.

The Court first notes in this respect that the first applicant was quickly released (after two days detention) as the District Court’s detention order was quashed on 7 July 2000. Also, significantly, this period was deducted from the sentence imposed on the first applicant in the judgment of 12 July 2000.

The answer to the question whether the applicant was afforded sufficient redress for the detention between 5 and 7 July 2000 also depends on whether the denial of compensation for that detention was compatible with the Convention.

The Court notes that, while Article 5 § 5 requires that there be an enforceable right to compensation for detention in breach of the provisions of Article 5, it does not guarantee an absolute right to compensation in all circumstances. The applicable principles were set out in the case of Wassink v. the Netherlands , judgment of 27 September 1990, Series A no. 185 ‑ A, p. 14, § 38 as follows:

“In the Court’s view, paragraph 5 of Article 5 ... is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4...  It does not prohibit the Contracting States from making the award of compensation dependent upon the ability of the person concerned to show damage resulting from the breach. In the context of Article 5 § 5 ..., as for that of Article 25... (see, inter alia , the Huvig judgment of 24 April 1990, Series A no. 176-B, pp. 56-57, § 35), the status of "victim" may exist even where there is no damage, but there can be no question of "compensation" where there is no pecuniary or non-pecuniary damage to compensate.”

In the present case the first applicant clearly had available a procedure for claiming compensation provided for in domestic legislation, but his claim was rejected at two court instances. The District Court relied on Section 2 of the Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons, which makes it possible to deviate in certain cases from the general rule in favour of compensation. The court considered the refusal of compensation justified in view of the short duration (two days) of the deprivation of liberty in question and the fact that this period together with other pre-trial detention would be deducted from the sentence imposed on the first applicant, noting also that in view of his guilt the two-day deprivation of liberty could not be considered to have caused such mental suffering as would result from a deprivation of liberty of an innocent person. The Court of Appeal accepted this reasoning noting, in addition, that the first applicant had tried to evade serving the five year sentence imposed on him by the judgment of 12 July 2000.

In these circumstances, the Court considers that refusal of the courts to award compensation was neither arbitrary nor unreasonable, but based on their assessment of whether on the facts any damage had been suffered by the applicant.

The Court further observes that the unlawfulness of the detention stemmed primarily from the application of the wrong legal provision to the first applicant’s case. Even if the legislation in force at the time was not totally unambiguous, it appears that there would have been an alternative legal basis for his detention. The Court notes the views put forward by the Deputy Chancellor of Justice on 18 April 2001 who maintained that it was generally accepted in the Court of Appeal’s case law that section 23 of Chapter 1 of the Act on Coercive Means of Criminal Investigation could be applied in similar situations.

In these circumstances the Court is satisfied that the prompt release of the first applicant together with the acknowledgement in substance by the Finnish courts of the wrongfulness of the deprivation of liberty and the deduction of the two day period from his overall sentence afforded the first applicant such redress that he can no longer be regarded as a victim. His complaints must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The first applicant also complains that he has not received any compensation for the deprivation of his liberty as required by Article 5 § 5 of the Convention. Article 5 § 5 providing that:

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court notes that since the first applicant is no longer a victim under Article 5 § 1 of the Convention, no issues arise under Article 5 § 5 of the Convention. In any case, for the reasons given above, the lack of compensation does not in the circumstances of the case disclose any appearance of a violation of Article 5 § 5. It follows that the first applicant’s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 and 4 of the Convention .

3. The first applicant also complains, under Article 13 of the Convention, about the lack of an effective remedy, as the Deputy Chancellor of Justice decided not to press charges against the District Court judges and as there was no criminal investigation in the matter.

The Court notes that the Convention does not guarantee a right to have a criminal investigation conducted or charges brought against third parties. It follows that this part of the first applicant’s complaints must be rejected as incompatible ratione materiae pursuant to Article 35 § 3 and 4 of the Convention .

II. THE SECOND APPLICANT

1. The second applicant complains that his right to liberty has been restricted, invoking Article 5 § 5 (see above) and Article 5 § 3, which provide that:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court first notes that the second applicant was already serving a prison sentence at the time of his arrest and detention for another suspected crime. Examination of the case-file does not reveal any appearance of violation of Article 5 § 1 of the Convention arising from his change of location.  Nor has the second applicant substantiated his claims under Article 5 § 3 or submitted any indication that he brought these complaints to the attention of domestic courts or attempted in any other way to seek redress before domestic authorities. In the absence of any substantiated breach of Convention rights concerning the second applicant’s right to liberty, no right to compensation arises under Article 5 § 5. It follows that, even assuming exhaustion of domestic remedies pursuant to Article 35 § 1,  this part of the application must be regarded as manifestly ill-founded as a whole and  rejected pursuant to Article 35 §§ 3 and 4.

2. The second applicant also complains under Article 14 of the Convention ( prohibition against discrimination in the enjoyment of the Convention rights ) claiming that he has been denied compensation due to his status as a prisoner. The Court notes that there is nothing in the case-file that would indicate that the second applicant’s compensation claim was rejected on a discriminatory basis. It follows that this part of the application is manifestly ill-founded and may be rejected pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza       Deputy Registrar President