Communicated on 8 January 2015

FOURTH SECTION

Application no. 56936/13 Veikko EKLUND against Finland lodged on 6 September 2013

STATEMENT OF FACTS

The applicant, Mr Veikko Eklund , is a Finnish national who was born in 1947 and lives in Helsinki. He is represented before the Court by Mr Matti Jousinen , a lawyer practising in Helsinki.

A. The circumstances of the case

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

1. First set of proceedings

On 14 May 2008 the Vantaa District Court ( käräjäoikeus , tingsrätten ) convicted the applicant on two counts of making a false statement in court ( perätön lausuma tuomioistuimessa , osann utsaga inför domstol ) and sentenced him to a suspended prison sentence of five months.

The applicant appealed to the Helsinki Appeal Court ( hovioikeus , hovrätten ).

On 18 June 2010 the Helsinki Appeal Court upheld the District Court judgment. Justice P.V. was part of the composition of the Appeal Court. The Appeal Court judgment became final as it was not appealed against.

2. Second set of proceedings

On 17 January 2011 charges were pressed against the applicant. He was accused, inter alia , of aggravated debtor ’ s fraud ( törkeä velallisen petos , g rovt gäldenärsbedrägeri ) for not having declared in his enforcement inquiry ( ulosottoselvitys , utsökningsutredning ) on 9 February 2004 real estate which was used as his principal residence but which was officially owned by a limited liability company, all of whose shares were owned by the applicant ’ s children.

On 11 January 2012 the District Court convicted the applicant of, inter alia , aggravated debtor ’ s fraud for failing to declare the real estate on 9 February 2004 and sentenced him to a global prison sentence of two years and ten months. The court found that as the applicant had not declared the real estate in question on 9 February 2004, he was guilty of concealing his property.

By letter dated 9 February 2012 the applicant appealed to the Appeal Court, requesting that the District Court judgment be quashed. He noted that the District Court had not explained why, on 9 February 2004 during the enforcement inquiry, he should have declared the real estate as his personal property when it was owned by a limited liability company. The company had obtained legal confirmation of ownership ( lainhuuto , lagfart ) and had been officially entered in the land register as the owner of the real estate. The property rights of the company or its shareholders were never even put in question. The applicant claimed that he had given truthful information on 9 February 2004.

On 6 November 2012 the Appeal Court upheld the District Court judgment as far as the count concerning aggravated debtor ’ s fraud was concerned. Concerning the prohibition of self-incrimination, it found that on 9 February 2004 the applicant was not charged with any crime. Subsequently, the charges for debtor ’ s dishonesty had been brought against him but they only concerned the period from 26 March 2004 onwards. He had not therefore had any right to remain silent on 9 February 2004 but should have declared the real estate. By failing to do so, he had concealed his property and was therefore found guilty of aggravated debtor ’ s fraud. This judgment was rendered by the Appeal Court composition which included Justice P.V.

By letter dated 18 December 2012 the applicant appealed to the Supreme Court ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before the Appeal Court. He also referred to the prohibition of self-incrimination and claimed that, when making his statement on 9 February 2004, it could not be ruled out that he could have been accused of debtor ’ s fraud, had he given any information. Moreover, he claimed that Justice P.V. had been biased as he had been part of the Appeal Court composition also on 18 June 2010 when the applicant was convicted of making a false statement in court.

On 11 March 2013 the Supreme Court refused the applicant leave to appeal.

3. Extraordinary proceedings

By letter dated 20 August 2013 the applicant lodged an extraordinary appeal with the Supreme Court, requesting that the Appeal Court judgment of 6 November 2012 be annulled and the proceedings be reopened due to the fact that the Appeal Court had been biased and the prohibition of self ‑ incrimination had been violated.

These proceedings are apparently still pending.

B. Relevant domestic law

At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act ( ulosottolaki , utsökningslagen , Act no. 37/1895, as amended by Act no. 679/2003). These provisions provided that, f or the purpose of obtaining the necessary information for enforcement, the Bailiff could carry out an enforcement inquiry. In the enforcement inquiry, the debtor had to provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He also had to give information about the whereabouts of an object or a document which, by a judgment, he has been ordered to give to another person or which by law has to be given to the enforcement authority.

In the enforcement inquiry, the debtor had to provide such information as was necessary to establish whether property disposed of and related transactions could be recovered for the purposes of enforcement. Where requested by the Bailiff, the debtor in the enforcement inquiry had to prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor.

If the debtor or his or her representative failed to comply with his or her obligations, the Bailiff could order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. Payment of the administrative fine was ordered if the obligations had not been fulfilled or had been contravened without a valid reason.

Since 1 March 2004 Chapter 3, section 73, of the Enforcement Act contained also a provision prohibiting the Bailiff from transmitting to other authorities incriminating information. This provision read as follows:

“The Bailiff must not disclose information which has to an essential extent been received from:

...

2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges on the debtor;

...”

The Enforcement Act was replaced by the Code of Enforcement ( ulosottokaari , utsökningsbalken , Act no. 705/2007) with effect from 1 January 2008. The contents of the relevant provisions essentially remained the same.

Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code ( rikoslaki , strafflagen , Act no. 39/1889, as amended by Act no. 769/1990).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that one of the Appeal Court judges was biased as he had already, in 2010, participated in another, related case where the applicant was convicted, and that he was therefore prejudiced.

He also complains under the same Article that the prohibition against self-incrimination was violated as he was convicted by the Appeal Court in 2012 for not having declared all his assets on 9 February 2004 during the enforcement inquiry .

QUESTIONS TO THE PARTIES

1. Was the Appeal Court which dealt with the applicant ’ s case in the second set of proceedings impartial, as required by Article 6 § 1 of the Convention?

2. Was the fact that the applicant was convicted of debtor ’ s fraud for having refused to give information about his assets in the enforcement inquiry in conformity with Article 6 of the Convention? In particular, was the applicant ’ s right not to incriminate himself respected during the second set of proceedings?