FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42621/98 by Pertti KULLAA against Finland

The European Court of Human Rights ( Fourth Section) , sitting on 10 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 July 1998,

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 decision of 28 June 2001 to communicate the application to the respondent Government,

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 Pertti Kullaa, is a Finnish national , born in 1952 and living in Helsinki. He is represented before the Court by Mr Kari Aarrevuo, a lawyer practising in Helsinki. The respondent Government are represented by their Agents, Mr Holger Rotkirch, Director-General for Legal Affairs, and Mr Arto Kosonen, Director, both of 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 18 December 1996 the applicant was convicted of an aggravated narcotics offence and sentenced to 18 months’ imprisonment by the District Court ( käräjäoikeus , tingsrätt ) of Hyvinkää . He was also ordered to forfeit  FIM 22,600 (approximately 3,800 euros ) to the State of Finland as the value of the narcotic substances he had sold.

The applicant informed the District Court of his intention to appeal to the Court of Appeal ( hovioikeus , hovrätt ) against the District Court’s judgment . He, however, failed to submit his appeal within the relevant time-limit. According to the applicant, the failure was due to the illness of his lawyer and the fact that certain technical equipment had been out of order in the latter’s office on 17 January 1997 when the appeal was due. The applicant’s later request for restoration of lapsed time was rejected by the Court of Appeal.

On 9 April 1997 the applicant requested the Supreme Court ( korkein oikeus , högsta domstolen ) to re-open the proceedings in so far as he had been ordered to forfeit to the State of Finland the value of the narcotics he had sold. The applicant argued that the District Court’s judgment had been based on wrong interpretation of domestic law as, according to Section 50, subsection 6 , paragraph 1, of the Penal Code ( rikoslaki , strafflag ), the value of the narcotics may only be ordered to be forfeited to the State if the narcotic substances are hidden or destroyed in order to avoid their confiscation. On the other hand, the applicant agreed that he could have been ordered to compensate to the State the profit he had made from selling the narcotic substances in question. That amount would have been considerably less as the price the applicant had paid for them would have been deducted from their total value.

On 5 February 1998 the Supreme Court refused the applicant’s request to re-open the proceedings. Its decision reads as follows:

“In the present case, the District Court should have applied Chapter 2, Section 16(1), of the Penal Code instead of Chapter 50, Section 6(1) of that same Act. It should have ordered [the applicant] to forfeit the proceeds of the offence. Indeed, the Prosecutor had demanded that the proceeds of the offence be forfeited, finding that they amounted to the sales price. According to Chapter 2, Section 16(1) of the Penal Code, “the financial benefit of the offence ... shall be estimated at the discretion of the court ...”. Considering that there is no evidence as to the costs possibly incurred by [the applicant] in the purchase of the narcotic substances, it was open [to the District Court] to estimate the proceeds of the offence as corresponding to the sales price or as being of a smaller value.

Although the District Court’s judgment was based on incorrect application of law, the Supreme Court finds, on the grounds given above and considering the amount of money to be forfeited, that [the applicant’s] legal protection does not require that the District Court’s decision be annulled. Therefore, the Supreme Court dismisses the request by virtue of Chapter 31, Section 8, paragraph 4 of the Code of Judicial Procedure.” 

B. Relevant domestic law

According to Chapter 50, Section 6(1), of the Penal Code, a narcotic substance which has been the object of an offence referred to in this chapter must be declared forfeited to the State. If the narcotic substance cannot be declared forfeited because it has been concealed or destroyed so as to evade this sanction, the offender and an accomplice can be ordered to forfeit, instead of the narcotic substance, its value in full or in part.

According to Chapter 2, Section 16(1), of the Penal Code, the financial benefit of the offence to the offender or to the person whom he has been acting for or on behalf of must be estimated at the discretion of the court and declared forfeited regardless of whether charges have been brought against the person for whom the offender has been acting for.

According to Section 31, subsection 8, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångs balk ), a judgment which has become final may be annulled if it has been based on a manifestly wrong interpretation of law.

COMPLAINTS

1. The applicant complains, under Article 6 § 1 of the Convention, that he did not receive a fair trial in the re-opening proceedings before the Supreme Court as the Supreme Court did not annul the District Court’s judgment even though it had clearly been based on a manifestly wrong interpretation of law.

2. The applicant complains, under Article 1 of Protocol No. 1, that his right to the peaceful enjoyment of his possessions has been violated as he has been ordered to pay FIM 22,600 to the State of Finland on a ground which is not based on law and as the amount is, taking into account his financial situation, a substantial one.

3. The applicant complains, under Article 13 of the Convention, that he does not have an effective remedy against the Supreme Court’s decision as no tribunal is competent to overrule the Supreme Court’s decision.

THE LAW

1. The applicant complains that he was not afforded a fair hearing in the re-opening proceedings before the Supreme Court as the District Court’s judgment was not quashed even though the Supreme Court accepted that the District Court had applied the Penal Code incorrectly. He invokes Article 6 § 1 of the Convention which reads, insofar as relevant, as follows:

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

The Court recalls, in accordance with its established case-law, that Article 6 § 1 does not apply to proceedings for re-opening a trial given that someone who applies for his case to be re-opened and whose sentence has become final, is not “someone charged with a criminal offence” within the meaning of the said Article. It follows from this that the Contracting States are not obliged to allow individuals the opportunity of applying for review of a decision having become res iudicata . Thus, there is no right guaranteed by the Convention to have a decision re-opened either.

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

2. The applicant complains that he was deprived of his possessions illegally as the order of forfeiture was not in accordance with the law. Moreover, taking into account what was at stake, the order of forfeiture was arbitrary. He invokes Article 1 of Protocol No. 1 to the Convention which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government note that the applicant has not exhausted the domestic remedies available to him as he failed to appeal against the District Court’s decision to the Court of Appeal.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 obliges those seeking to bring their case against the State before an international judicial or arbitration organ to use the remedies provided by the national system. This requirement is an important aspect of the principle of subsidiarity according to which a State should first have an  opportunity to put matters right through their own legal system (see, amongst other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions no. 15 , 1996 - IV, pp. 1210-1222, §§ 65-69). Normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the alleged breaches. Moreover, the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and any procedural methods that might prevent a breach of the Convention should have been used.

The Court notes that the applicant did not file an ordinary appeal before the Court of Appeal against the District Court’s decision of 18 December 1996 even though he had informed the District Court of his intention to do so. The Court considers that the reasons invoked by the applicant, i.e. the lawyer’s illness and the alleged technical problems in the latter’s office, cannot provide a justification for that failure. The question remains, however, whether the extraordinary appeal made by the applicant could be regarded as sufficient for the purpose of Article 35 § 1 in the particular circumstances of the case, in which the Supreme Court did examine the merits of the applicant’s complaint in the extraordinary proceedings.

The Court recalls that, as a main rule, the extraordinary appeal, as provided for by Section 36, subsection 8, of the Code of Judicial Procedure, is not an effective remedy within the meaning of Article 35 § 1. This is due to the fact that, even in the case of a wrong application of law, there is no right to have the judgment annulled as Section 31, subsection 8 of the Code of Judicial Procedure provides that “a judgment may be annulled if it has been based on a manifestly wrong interpretation of law”.

The limits of this remedy are well illustrated by the present case in which the Supreme Court concluded that there was no sufficient legal interest to annul the decision attacked although that decision had not been in accordance with law. No such weighing of the legal interests would have been possible in ordinary appeal proceedings, but the Court of Appeal would have been bound to amend the first instance decision if it had come to the conclusion that the decision was not in accordance with law. After the Court of Appeal proceedings it would have been open to the applicant to apply for leave to appeal from the Supreme Court.

In view of the above, the Court considers that the applicant would have had reasonable prospects of having the first instance decision remedied in ordinary appeal proceedings had he filed his appeal against the District Court’s decision within the relevant time-limit.

There are no specific circumstances in the present case which would have absolved the applicant from the obligation to exhaust the effective remedies at his disposal.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant complains about the lack of an effective remedy against the Supreme Court’s decision as no tribunal is competent to overrule the Supreme Court’s decision. He invokes Article 13 of the Convention which reads as follows:

“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.”

Having regard to its findings above, the Court considers that the applicant does not have “an arguable claim” of a violation of the Convention.

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 Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza                    Deputy Registrar President