FOURTH SECTION

DECISION

Application no . 26216/11 Tuula Ansa Annikki HYVÄRINEN against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 28 January 2014 as a Committee composed of:

Päivi Hirvelä , President, Vincent A. De Gaetano, Robert Spano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Tuula Ansa Annikki Hyvärinen , is a Finnish national who was born in 1942 and lives in Espoo . She was represented before the Court by Mr Markku Salo , a lawyer practising in Helsinki .

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

4. The applicant had owned 40% of the shares in a limited liability company since 1997. When her ownership and right to dividends were contested in 1998, she lodged an action in a District Court ( käräjäoikeus , tingsrätten ) on 22 December 1998. On 31 December 1999 the District Court found in her favour . On 7 July 2000 this judgment was upheld by the Appeal Court ( hovioikeus , hovrätten ) . On 20 October 2000 the Supreme Court ( korkein oikeus , högsta domstolen ) refused leave to appeal.

5. As the previous proceedings had revealed that apparently forged documents had been submitted to the courts as well to other authorities, on 15 June 1999 the applicant asked the police to start a criminal investigation. On 13 June 2000 the applicant was heard as a complainant. The criminal investigation was concluded on 10 September 2000. As the applicant found it flawed, she submitted additional document s to the police on 26 September 2000. On 3 February 2001 this material was included in the additional pre ‑ trial investigation report. The pressing of charges was, however, adjourned pending the conclusion of another pre-trial investigation which had been initiated by the applicant by letter dated 7 February 2001, in which context the applicant had also requested a prohibition of any transfer of the company assets. This request was repeated by letter dated 17 April 2001.

6. The second pre-trial investigation wa s slow and therefore on 26 June 2002 the leading district prosecutor asked the police to take action. The second pre-trial investigation was concluded on 30 September 2003.

7. On 29 July 2004, as far as the second criminal investigation was concerned, the public prosecutor pressed charges against the only member of the board of the limited liability company, Mr D. On the same day he decided not to press charges in respect of the alleged forgery of documents.

8. On 11 October 2004 the applicant joined the public prosecutor ’ s charges and requested that Mr D. be ordered to pay her compensation in the amount of 214,000 euros plus interest and to cover her costs and expenses.

9. As the applicant found the pre-trial investigation as well as the decisions of the public prosecutor flawed, on 28 September 2004 she asked the public prosecutor to request an additional investigation into the matter. On 12 October 2004 she also lodged a complaint with the Prosecutor General ( valtakunnansyyttäjä , högsta åklagaren ).

10. On 15 September 2005 the Deputy Prosecutor General did not find any reason to change the decisions taken by the public prosecutor but noted that a period of four years for pressing charges was too long, although this delay was not entirely attributable to the public prosecutor.

11. On 23 May 2007 the District Court held a preparatory session in respect of the charges brought on 29 July 2004. An oral hearing was held in February 2008.

12. On 22 February 2008 the District Court convicted Mr D. of aggravated embezzlement and handed down a suspended sentence of 7 months. The sentence was mitigated by some 5 to 6 months due to the excessive length of the proceedings, which according to the court was mainly attributable to the applicant. Mr D. was also ordered to pay the applicant 32,000 euros in compensation bec a u s e her 40 % share of the company had accordingly lost value, as well as reasonable costs and expenses.

13. By letter dated 15 April 2008 the applicant appealed to the Appeal Court complaining, inter alia , that the excessive length of the proceedings should not lead to a mitigation of the sentence in Mr D. ’ s favour . She claimed that , contrary to the District Court ’ s opinion, the excessive length was not her fault but was due to the authorities and to the fact that Mr D. ’ s lawyers had been biased.

14. On 29 May 2009 the Appeal Court, after having held an oral hearing on 20 January 2009, upheld the District Court ’ s judgment. It found no reason to assess the evidence differently or to come to a different conclusion than the District Court.

15. By letter dated 28 July 2009 the applicant appealed further to the Supreme Court, reiterating the grounds for appeal already presented before the Appeal Court. However, no complaint was made in respect of the allegedly excessive length of proceedings; this issue was only brought up, as before the Appeal Court, as an argument against the mitigation of Mr D. ’ s sentence.

16. On 28 October 2010 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

17. The Act on Compensation for Excessive Duration of Judicial Proceedings ( laki oikeudenkäynnin viivästymisen hyvittämisestä , lagen om gottgörelse för dröjsmål vid rättegång ; Act no. 362/2009) entered into force on 1 January 2010. The Act provides part ies with a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long.

18. On 7 May 2010 the Supreme Court found in its precedent case KKO :2010:31 that, as the Appeal Court judgment had been delivered before the entry into force of the Act, the applicant in that case could no longer present his compensation claim for excessive length before the Appeal Court. Therefore he had had a valid reason to claim compensation only before the Supreme Court which accordingly decided to examine his claim.

COMPLAINTS

19. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings. She also complain ed under Article 1 of Protocol No. 1 and Article 13 of the Convention that her property had not been protected during the pre-trial investigation as the authorities ha d not prevent ed its loss of value by ordering interim measures. She claim ed that she ha d not ha d any effective remedy to speed up the pre ‑ trial investigation or to have interim measures enforced.

THE LAW

A. Excessive length of the proceedings

20 . The ap plicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings .

21. Article 6 § 1 of the Convention reads in the relevant parts as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

22. The Government argued that the applicant had not exhausted all effective domestic remedies available to her. They emphasised that the Act on Compensation for Excessive Duration of Judicial Proceedings had entered into force on 1 January 2010. According to this Act, a claim for compensation had to be filed as soon as possible and at the latest before the proceedings in the main issue had ended. A claim could not, without a valid reason, be filed as late as at the Supreme Court stage. According to the Supreme Court practice (see case KKO :2010:31 ) such valid reason was, however, at stake if the proceedings on the main issue had already ended in the Appeal Court before the entry into force of the Act.

23. The Government pointed out that the Court had already found that the Act provided an effective remedy for excessive length in civil and criminal cases. When the Act entered into force, the present case was pending before the Supreme Court. The applicant could thus have filed her claim for compensation on 1 January 2010 or thereafter. Such a claim could also have been filed in respect of the length that dated from the time before the entry into force of the Act. The Act had been published on 3 June 2009 and the applicant had been represented by a lawyer. As the applicant had not presented her compensation claim before the Supreme Court, her complaint should , in the Government ’ s view , be declared inadmissible for non ‑ exhaustion of domestic remedies.

24. The applicant claims that she had exhausted all effective domestic remedies. When her case was before the Appeal Court, the Act had not yet been published, let alone entered into force. When the applicant had been in contact with the Supreme Court, the Act had not been mentioned at all. The Supreme Court precedent KKO :2010:31 concerned another kind of situation that the applicant ’ s. Although a lawyer had drafted her letter of appeal to the Supreme Court, the applicant had not been represented by a lawyer before that court.

25. T he Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

26 . The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France , 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV ).

27 . The Court has already found in the context of other cases (see Ahlskog v. Finland ( dec. ), no. 5238/07, 9 November 2010; and S.V. v. Finland ( dec. ), no. 66399/09, 24 January 2012) that a complaint under the Act on Compensation for Excessive Duration of Judicial Proceedings is an effective remedy in the sense that it is capable of providing adequate redress for excessive length of proceedings in civil and criminal cases, provided that the impugned proceedings are still pending.

28 . In this connection, the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). The Court has on many occasions held in cases concerning the length of proceedings, and which had not been declared admissible by the Court, that applicants should be required to have recourse to domestic remedies notwithstanding that those remedies have been enacted after their applications have been filed with the Court (see, for example, Giacometti and Others v. Italy ( dec. ), no. 34939/97 , ECHR 2001 ‑ XII; Nogolica v. Croatia ( dec. ), no. 77784/01 , ECHR 2002 ‑ VIII ; Andrášik and Others v. Slovakia ( dec. ), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00 , ECHR 2002 ‑ IX; CharzyÅ„ski v. Poland ( dec. ), no. 15212/03 , § 40, ECHR 2005 ‑ V ; Ahlskog v. Finland ( dec. ) , cited above; and S.V. v. Finland ( dec. ), cited above ).

29 . The Court notes that in the present case the proceedings before the Appeal Court ended on 29 May 2009 when it delivered its judgment. The Act on Compensation for Excessive Duration of Judicial Proceedings was published on 3 June 2009. By letter dated 28 July 2009 the applicant appealed further to the Supreme Court where her case was pending when the Act entered into force on 1 January 2010. On 7 May 2010 the Supreme Court issued its precedent case in which it accepted that the fact that the Appeal Court proceedings had already ended when the Act entered into force was a valid reason to make such a claim before the Supreme Court.

30. The Court notes that the applicant admitted that, after having lodged her appeal, she had been in contact with the Supreme Court but that the Act had not been mentioned at all. She does not put forward any reasons why she was not able to supplement her appeal to the Supreme Court with a compensation claim on these occasions. The Court reiterates that it is for the applicant to decide the scope of her appeal and to formulate the claims she wants to make. Moreover, the Act on Compensation for Excessive Duration of Judicial Proceedings had already been published at the time when the applicant ’ s counsel drafted the letter of appeal to the Supreme Court on her behalf. It was thus publicly available at that time.

31 . Taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, the Court finds that the applicant should have relied on the Act on Compensation for Excessive Duration of Judicial Proceedings during the Supreme Court proceedings after the Act entered into force on 1 January 2010.

32. It follows that the applicant ’ s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Remainder of the application

33 . T he applicant also complain ed under Article 1 of Protocol No. 1 and Article 13 of the Convention that her property had not been protected during the pre-trial investigation as the authorities ha d not prevent ed its loss of value by ordering interim measures. She claim ed that she ha d not ha d any effective remedy to speed up the pre-trial investigation or to have interim measures enforced.

34. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President