FOURTH SECTION

Application no. 49676/11 Esa Samuli LUPALA against Finland lodged on 22 July 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Esa Samuli Lupala , is a Finnish national who was born in 1953 and lives in Harjunpää . He was represented before the Court by Mr Tomi Borgenstr ö m , a lawyer practising in Tampere .

A. The circumstances of the case

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

The applicant was suspected by the police of theft ( varkaus , stöld ).

On 14 June 2011 the police conducted a search at the applicant ’ s domicile. The applicant was not allowed to be present during the search.

On 19 July 2011 the applicant received the minutes drawn up a f ter the search.

B. Relevant domestic law

1. Constitution

According to Article 10 of the Finnish Constitution ( perustuslaki , grundlagen , Act n o. 731/1999) , the sanctity of everyone ’ s home is guaranteed. M easures derogating from this right , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act.

2. Coercive Measures Act

Chapter 5, section 1 , subsection 1, of the Coercive Measures Act ( pakkokeinolaki , tvångsmedelslag en , Act no. 646/2003 ) provides that a search may be conducted, inter alia , if there is reason to suspect that an offence has been committed and provided the maximum sentenc e applicable exceeds six months ’ imprisonment.

The person whose domicile is being searched, or in his or her absence someone else, must be given the opportunity to be present at the search and to call a witness, unless this causes delay. If none of the above-mentioned persons were present at the search, the person whose domicile has been searched must be informed immediately (Chapter 5, section 4, subsection 2).

A search at domicile cannot be conducted between 9 p.m. and 6 a.m. unless there are special reasons ( Chapter 5, section 5, subsection 4).

The search warrant is issued by the investigative organs themselves.

3. Penal Code

According to Chapter 28, section 1, of the Penal Code ( rikoslaki , strafflagen , as modified by Act no. 769/1990), a person can be sentenced for theft to a fine or to imprisonment for at most one year and six months.

4. Remedies

According to section 118, subsection 3, of the Constitution everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act.

Chapter 40, section 9, subsection 1, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.

Chapter 40, section 10, of the Penal Code (Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in of ficial functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fin e.

According to Chapter 1, section 14, of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , Act no. 689 /1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

Under Chapters 3 and 4 of the Tort Liability Act ( vahingonkorvauslaki , skadeståndslag en , Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties.

COMPLAINTS

The applicant complains under Article s 8 and 13 of the Convention that he did not have a possibility, at any stage of the proceedings, to challenge the search before a court. There was thus no effective remedy available to him.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his home within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?