FOURTH SECTION

CASE OF KALLE KANGASLUOMA v. FINLAND

( Application no. 5635/09 )

JUDGMENT

This vers ion was rectified on 10 May 2011

under Rule 81 of the Rules of Court

STRASBOURG

15 February 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kalle Kangasluoma v. Finland ,

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

David Thór Björgvinsson , President, Päivi Hirvelä , Mihai Poalelungi , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 25 January 2011 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 5635/09) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Kalle Petteri Kangasluoma (“the applicant”), on 26 January 2009 .

2 . The applicant was represented by Mr Jaakko Tuutti, a lawyer practising in T ampere . The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs .

3 . On 8 June 2009 the President of the Fourth Section decided to give notice of the application to the Government . In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1980 and lives in Lapua .

5 . After a request made by a complainant on 8 January 2002 the police started to investigate the applicant ' s alleged involvement in aggravated fraud and aggravated embezzlement which had taken place in 2001. The applicant was questioned for the first time by the police on 22 June 2003. The p re-trial investigation was concluded on 27 August 2003 and the case file was submitted to the public prosecutor on 16 April 2004 .

6 . On 16 July 2004 the public prosecutor brought charges against the applicant for aggravated fraud and aggravated embezzlement. On the same date the case became pending before the Lahti District Court ( käräjäoikeus, tingsrätten ) .

7 . The date of the initial oral hearing in respect of the applicant was set for 9 September 2004 but he could not be heard a s all witnesses could not be summoned.

8 . On 29 November 2004 the applicant gave a written statement in the case.

9 . Other hearings were also planned, for example for 7 Decemb er 2004, 12 December 2005 and 8 May 2006, but they were all eventually either cancelled or the applicant could not be heard for other reasons.

10 . The hearing of the applicant ' s case was dependent o n the proceeding s agai n st M. T. , who was the co- defendant in both of the two counts o f indictment c o ncern ing the applicant. The domestic authorities tried to sum m on the applicant ' s co -defendant s including M.T. and the relevant witnesses on various occasions but these efforts remained unsuccessful. A n order for M.T. ' s apprehension was issued but annulled on 7 March 2006.

11 . T.L., a witness whose hearing was considered indispensable with reg ard to all counts of indictment against the applicant, was present at the hearings of 23 August 2004 and 7 December 2004 as far as the counts of indictment against him were concerned but he could not be reached for hearing as a witness in the applicant ' s case. While waiting for the clarification of T.L. ' s whereabouts, the District Court decided to stay proceedings from 8 May 2005 to 16 June 2009. As T.L. could not be reached for trial in Finland , a European Arres t Warrant was issued for his apprehension on 11 November 2007 . He was surrendered to Finland on an unspecified date.

12 . On an unspecified date the District Court decided to sever the applicant ' s case from that of his co-defendant s .

13 . On 27 May 2009 the District Court issued a summon s to be served to the applicant who was to appear for an oral hearing on 16 June 2009 . The hearing was cancelled as the applicant could not be summoned at his place of residence .

14 . From 31 July 2009 onwards the applicant was serving a prison sentence . While in prison, the applicant was summoned to the oral hearing held on 27 October 2009.

15 . On 3 November 2009 the District Court dismissed all charges against the applicant. As the judgment was not appealed against, it became final.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16 . The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which 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... ”

17 . The Government contested that argument.

A. Admissibility

18 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

19 . The period to be taken into consideration began on 22 June 2003 when the applicant was questioned for the first time by the police, and ended on 3 November 2009 when the final judgment was delivered in the case. The proceedings thus lasted over six years and four months at one level of jurisdiction.

20 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II) .

21 . The Government maintained that the length of the pre-tri a l investigation as well as the consideration of charges had been reasonable. As to the District Court proceedings, they noted that the relevant defendants and witnesses could not be reached for trial and the case could not be processed due to their simultaneous or individual absences. The domestic authorities had tried to summon them on various occasions without success. On 16 June 2009 the applicant had failed to attend an oral hearing without a valid excuse. The applicant ' s own conduct had thus had a crucial effect on the duration of the criminal proceedings and th is prolongation could not be attributed to the Government. There had been no unavoidable periods of in activity attributable to the domestic authorities, including the courts. As to the complexity, the Government maintained that the applicant ' s case had been a complex one, concerning economic crime. The evidence presented before the District Court had been extensive and the court had t aken test imon y from various witnesses . The court had delivered its judgment in respect of 27 other defendants of the case already on 15 October 2004. The Government concluded that, due to an abuse of his right of individual application, the applicant ' s application should be declared inadmissible under Article 35 § 4 of the Convention.

22 . The applicant pointed out that, as concerned the oral hearing of 16 June 2009, the domestic authorities had failed to summon him and therefore the question of a valid excuse ha d not even arise n . The applicant had not been aware of the oral hearing of 16 June 2009 and he could thus not be considered as abusing his right of individual application. As the charges against the applicant had been d ismissed, his sentence could no t have be en mitigated and thus there had been no effective remedy for excessive length available to him . Since 1997 it had been possible to hear witnesses outside the courtroom but the national authorities had failed to hear M.T. in this manner .

23 . The Court observes that the alleged attempts by the national authorities to reach the applicant ' s co-defendants or the witnesses and the grounds for the ca ncellation of several of the District Court ' s oral hearing s in respect of the applicant cannot be verified from any documents submitted to the case file . Thus, the Court is unable to assess whether the national authorities , in fact, resorted to all available measures, to a sufficient degree, in their attempts to find the applicant ' s co-defendants and the witnesses. The same applies also to the summonsing of the applicant for the oral hearing o f 16 June 2009 . Even assuming that the applicant had deliberately evaded the oral hearing set for 1 6 June 200 9 , that could not ha ve delayed the proceedings to a significant degree as the criminal proceedings against the applicant had already been pending for more than five years and eleven months before 27 May 2009 , that is, the date of issuing the summons. Therefore, the Court cannot but conclude that no major delay was attributable to the applicant. On the contrary, the Court notes that there was a considerably long period of inactivity attributable to the Government as the District Court had dec ided to stay the proceedings from 8 May 2005 to 16 June 2009 . The applicant ' s case thus remained dormant for more than four years.

24 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi , cited above).

25 . Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of pe rsuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

26 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

27 . The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

28 . The Government found the applicant ' s claim excessive as to quantum and considered that the total amount of compensation for non-pecuniary damage should not exceed EUR 1 , 5 00 .

29 . The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicant the full sum claimed.

B. Costs and expenses

30 . The applicant also claimed EUR 1,683.60 for the costs and expenses incurred before the Court.

31 . In the Government ' s view the total amount of compensation claimed for costs and expenses , EUR 1,683.60 (inclusive of value-added tax) , was reasonable.

32 . Regard being had to the documents in its possession and to its case-law , the Court considers it reasonable to award the sum claim ed for costs and expenses i n full.

C. Default interest

33 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant , within three months [1] , the following amounts:

( i) EUR 5 ,0 0 0 ( five thousand euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 1,683.60 ( one thousand six hundred and eighty-three euros and sixty cents ), plus any tax that may be chargeable to him , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 15 February 2011 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President

[1] . Rectified on 10 May 2011: The clause “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention” was deleted.