FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1420/09 by Kai OLKINUORA and Others against Finland

The European Court of Human Rights (Fourth Section), sitting on 14 December 2010 as a Committee composed of:

Ljiljana Mijović , President, Ledi Bianku , Nebojša Vučinić , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 23 December 2008,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Kai Juhani Olkinuora , Ms Riikka Maria Jantunen and their minor daughter, are Finnish nationals who were born in 1969 , 1972 and 2000 respectively and live in Tampere . They were represented before the Court by Mr Jaakko Tuutti , a lawyer practising in Tampere . 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

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

On 15 December 2002 the applicants entered the apartment where the second and third applicants lived at the time with J.H. Once the applicants entered the apartment, J.H. stepped out of the bathroom and fired at the first applicant with a shotgun causing minor injuries to his leg. The second and third applicants quickly left the apartment. In the aftermath J.H. hit the first applicant on the head causing bleeding.

The incident was reported to the police on the same day, on 15 December 2002. The applicants were questioned by the police on 17 and 18 December 2002 and J.H. on 19 December 2002. The pre-trial investigation was concluded on 6 March 2003.

On 12 March 2003 the case became pending against J.H. in the Tampere District Court ( käräjäoikeus , tingsrätten ). On 21 May 2003 the first applicant claimed compensation for the damage and suffering caused by J.H. The other two applicants did not do so.

The first hearing was scheduled for 5 June 2003, but it was cancelled as J.H. had not been found and a summons could not be served on him. According to the register of the District Court, J.H. was summoned on 23 March 2006. A total of 13 hearings had been cancelled by the end of 2008. The next hearing was to be scheduled w hen J.H. was apprehended.

On 26 January 2010 J.H. was detained in Sweden . The Finnish authorities requested his extradition, and an oral hearing was scheduled for 8 March 2010. However, he has not yet been extradited. An order to bring J.H. to the court is still pending.

On 6 April 2010 the applicants lodged a compensation claim with the District Court under the new Act on Compensation for Excessive Duration of Judicial Proceedings .

B. Relevant domestic law and practice

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

As to its scope of application, section 2 of the Act provides as follows:

“ This Act is applicable by ge neral courts to litigious, non- co ntentious and criminal actions.

Reduction of a penal sanction on the basis of excessive length of judicial proceedings is provided for in the Penal Code (39/1889). Irrespective of this Act, compensation for damage caused by excessive duration of judicial proceedings can be obtained as provided in the Tort Liability Act (412/1974). ”

The right to compensation is set out in section 3 of the Act which provides the following:

“ A private party is entitled to receive a reasonable amount of compensation as referred to in s ection 6 from the State funds if judicial proceedings last an excessively long time resulting in a violation of the party ’ s right to a trial within a reasonable time .”

When assessing the length of the proceedings, in addition to the length itself, the nature and scope of the subject-matter, the actions of the parties, authorities and courts in respect of the proceedings as well as the importance of the subject-matter to a party are to be taken into consideration pursuant to section 4 of the Act. Moreover, the case-law of the Strasbourg Court under Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is also to be taken into account.

According to section 5 of the Act, the period to be taken into account starts in civil and non-contentious civil matters when an action is initiated before a court ; in criminal matters when the competent authority has notified the defendant that he is suspected of a crime or when a suspicion that he has committed a crime has had an essential bearing on his position; or when a claim made by a party has become pending before a court .

As to the amount of compensation, section 6 of the Act provides the following:

“ The purpose of compensation is to compensate for the anxiety, uncertainty or other comparable harm caused to a party by exc essive duration of proceedings.

The amount of compensation is 1 , 500 e uros per year for each year that the proceedings have been delayed for reasons attributable to the State. The total amount of compensation shall be increased by a maximum of 2 , 000 e uros if the merits are particularly important to the party. A matter shall be considered particularly important if it has a direct bearing on the person ’ s health, income, legal position or some other comparable consideration. The compensation may be reduced or increased on the basis of a consideration referred to s ection 4 or for some other comparable consideration.

The compensation amount shall not exceed 10 , 000 e uros. Th is maximum amount of compensation may be exceed ed in special circumstances.

There is no e ntitlement to monetary compensation as far as a sanction imposed has been mitigated due to the excessive duration of proceedings. If compensation has been awarded earlier by a final decision in the same matter, it shall be taken into account when determining the new compensation , which shall be reduced accordingly.”

As to the procedure for claiming compensation, section 7 of the Act provides as follows:

“ A claim for compensation shall be lodged with the general court in charge of the case before the consideration of the merits is closed under pain of loss of the right of action. Such a claim cannot be lodged as late as at the Supreme Court stage w ithout a valid reason.

A claim may be made in writing or orally. Justifications for the claim shall be presented .”

According to section 8 of the Act, the public prosecutor shall assume in criminal matters the right of action on behalf of the State in respect of a compensation matter while the Ministry of Justice shall assume it in respect of other matters . The Ministry of Justice shall not be provided with an opportunity to be heard in respect of the compensation claim unless there is a special reason for so doing .

As to decision-making on the question of compensation, section 9 of the Act provides that t he court shall decide on the compensation claim when it decides on the merits of a case. The judicial formation of the Court competent for deciding on the merits shall also be competent for deciding on the issue of compensation. The court must notify the Ministry of Justice of the decision on compensation without delay .

Section 10 of the Act concerns costs. It provides the following:

“ If a party is awarded compensation, reimbursement of the necessary and reasonable costs incurred by him for claiming compensation shall be ordered to be paid to him from State funds unless otherwise reimbursed from State funds. No fee is charged for the processing of the compensation claim .”

According to section 11 of the Act, a decision rendered by a court on the compensation claim can be appealed against in the same manner as the decision on the merits. The Ministry of Justice can appeal against the District Court decision without having to register its intent ion to appeal .

As concerns the payment of compensation, section 12 of the Act provides that compensation shall be paid to the party within a month of the date on which the compensation decision became final. C ompensation shall be paid by the Ministry of Justice. A prohibition against attaching the award of compensation and its tax-f r ee nature are provided for by a separ ate provision .

The Act has already been applied by the domestic courts. On 1 February 2010 the Pirkanmaa District Court rejected a compensation complaint as the length of the proceedings had not been excessive (one year and ten months at one level of jurisdiction). In its judgment of 8 March 2010 the Vantaa District Court rejected a claim for compensation as it had been filed too late. On 1 March 2010 the Turku Court of Appeal found in a case that proceedings had been too lengthy since they had lasted six years and four months at two levels of jurisdiction, and awarded the applicants 1,500 and 2,000 euros respectively.

COMPLAINT

The applicants complained under Article 6 of the Convention about the length of the proceedings .

THE LAW

The applicant s complained under Article 6 of the Convention that the length of the proceedings against them had been excessive. Article 6 of the Convention reads as follows:

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

1. The submissions of the parties

The Government argued that the applicants had not exhausted the available domestic remedies as they had not lodged a claim for compensation for the alleged excessive length of the proceedings with the court in charge of their case. The new Act on Compensation for Excessive Duration of Legal Proceedings had entered into force on 1 January 2010 and it applied to any private party to the case. According to the Act, an award of compensation was to correspond to the Court ’ s case-law on length of proceedings. With regard to exhaustion of domest ic remedies, the Government pointed out that the primary responsibility for implementing and enforcing the rights and freedom s guaranteed by the Convention la y with the national authorities. The Court ’ s machinery wa s thus subsidiary to national systems safeguarding human rights. In the Government ’ s view the new remedy was effective within the meaning of the Court ’ s case-law. Consequently , the applicants ’ complaint should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

The applicants noted that when their application was lodged with the C ourt in December 2008, there existed no possibility to seek compensation for excessively lengthy proceedings. However, they had subsequently lodged a compensation claim. The applicants pointed out that the fact that the national proceedings had not yet been concluded did not prevent the Court from examining a length of proceedings complaint.

2. The Court ’ s assessment

The Court points out that it has already stated in the context of the case Ahlskog v. Finland ( dec .), (no. 5238/07, 9 November 2010) that the new compensation remedy available in Finland under the Act on Compensation for Excessive Duration of Judicial Proceedings has empowered the general courts to grant financial compensation for non-pecuniary damage if they find that the court proceedings have been unreasonably lengthy . In that decision the Court note d that the Act came into force on 1 January 2010 and that the long-term practice of the domestic courts c ould not yet be established. However, the wording of the Act clearly indicate d that it wa s specifically designed to address the issue of excessive length of proceedings before the domestic courts. Furthermore, the recent domestic court decisions referred to above, by which persons complaining about the length of proceedings before general courts obtained relief of a compensatory nature, show ed that the remedy in question was effective not only in law, but also in practice (see CharzyÅ„ski v. Poland ( dec .), no. 15212/03 , § 41, ECHR 2005 ‑ V ; and Michalak v. Poland ( dec .), no. 24549 /0 3 , § 42, 1 March 200 5) . I n view of the above, the Court wa s satisfied that a complaint under t he Act on Compensation for Excessive Duration of Judicial Proceedings wa s an effective remedy in the sense that it wa s capable of providing adequate redress for excessive length of proceedings in civil and criminal cases, provided that the impugned proceedings we re still pending.

In the present case the question arises as to whether the applicants should be required to exhaust this remedy, given that they introduced their application prior to the enactment of the above Act. 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)).

Thus, the Court has held that applicants in cases against Italy which concerned length of proceedings, and which had not been declared admissible, should be required to have recourse to the remedy introduced by the “Pinto Act” notwithstanding that it was enacted after their applications had been filed with the Court (see, for example, Giacometti and Others v. Italy ( dec .), no. 34939/97 , ECHR 2001 ‑ XII; or Brusco v. Italy ( dec .), no. 69789/01 , ECHR 2001 ‑ IX ). A similar decision was taken in respect of cases introduced against Croatia following the entry into force of a constitutional amendment permitting the Constitutional Court to provide redress of both a preventive and a compensatory nature to persons complaining about undue delays in judicial proceedings (see Nogolica v. Croatia ( dec .), no. 77784/01 , ECHR 2002 ‑ VIII ). A similar approach was followed also in respect of Slovakia (see 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 ) , Poland (see CharzyÅ„ski v. Poland ( dec .), cited above, § 40; and Michalak v. Poland ( dec .), cited above, § 41 ) and most recently, in respect of Finland (see Ahlskog v. Finland ( dec .) , cited above, § 79) .

A complaint under the Act on Compensation for Excessive Duration of Judicial Proceedings can be lodged by any private party to proceedings, provided that the proceedings complained of are pending either before the District Court or the Court of Appeal at the moment of its introduction and that the consideration of the merits has not yet been closed. Such a possibility thus extends to the applicants in the present case.

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 applicants should be required to use the remedy available to them under the Act on Compensation for Excessive Duration of Judicial Proceedings which entered into force on 1 January 2010.

The Court notes that the applicants in fact lodged on 6 April 2010 a compensation claim with the District Court under the new Act on Compensation for Excessive Duration of Judicial Proceedings and that their case is still pending before the District Court. In these circumstances the Court considers that the applicants ’ Convention complaint is premature.

It follows that the Government ’ s objection is upheld , and the applicants ’ complaint must be rejected as premature pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ljiljana Mijović Deputy Registrar President