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FOURTH
SECTION
CASE OF ELORANTA v. FINLAND
(Application
no. 4799/03)
JUDGMENT
STRASBOURG
9
December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Eloranta v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4799/03) 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, Ms Vera
Eloranta (“the applicant”), on 24 January 2003.
- The
applicant was represented by Mr R. Virtanen, a lawyer practising in
Turku. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- On
20 December 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Masku.
- On
16 February 1980 the applicant was injured in a car accident. On
15 October 1980 the Turku City Court (raastuvanoikeus,
rådstuvurätten) rejected her request to increase the
amount of compensation she had already received from an insurance
company. She unsuccessfully appealed against the decision to the
Turku Court of Appeal (hovioikeus, hovrätten) and
subsequently the Supreme Court (korkein oikeus, högsta
domstolen), which gave their decisions on 13 May and 5 October
1981 respectively.
- Subsequently,
another insurance company, as well as the Social Insurance
Institution (kansaneläkelaitos, folkpensionsanstalten)
granted the applicant a pension on grounds of her disability.
- On
14 September 1993 the Supreme Court partly annulled the above court
decisions in the light of new medical evidence presented by the
applicant. On 1 December 1993 she filed a new claim for compensation
alleging that she had become permanently unfit for work due to her
physical injuries and a traumatic stress reaction caused by the
accident. On 8 November 1994 the Turku District Court
(käräjäoikeus, tingsrätten) ordered the
other party to the accident and the insurance company to pay the
applicant approximately 1,500,000 Finnish marks (FIM), mainly for
loss of income.
- On
9 March 1995 the police started a pre-trial investigation, suspecting
the applicant of, inter alia, multiple fraud. The applicant
was questioned as a suspect for the first time on 19 April 1995.
- On
19 January 1996 the public prosecutor brought charges against the
applicant in the Turunseutu District Court, which held its first
session on 4 March 1996. In addition to written evidence, the
court received testimony from several witnesses in the course of the
proceedings.
- On
8 May 2000 the court concluded, inter alia, that the applicant
had continued to work as an entrepreneur in the cleaning trade after
the accident, although she was receiving a pension at that time.
Furthermore, she had given false information to the tax authorities
about her business activities and had falsely claimed to be disabled
in order to obtain financial benefits. She was convicted of several
offences including, inter alia, tax fraud, an accounting
offence and aggravated fraud and was sentenced to one year and ten
months' unconditional imprisonment. She was also ordered to pay
damages.
- The
applicant appealed against the judgment to the Turku Court of Appeal
claiming, inter alia, that the District Court had unlawfully
relied on witness statements given to the police because some of the
witnesses had refused to testify in court. The applicant had not been
able to put questions to these witnesses. The court had also relied
on the applicant's own pre-trial statement. Furthermore, she claimed
that the court had made an assessment of her medical condition on the
basis of insufficient evidence.
- On
28 June 2002 the Court of Appeal, having held an oral hearing, upheld
the judgment specifying, however, its own conclusions on the facts
regarding the dates of the offences and modifying the amount of
damages. The court received testimony from 20 witnesses as well as
from the applicant herself. In its reasons it stated, inter alia,
that the medical evidence presented to the court did not have any
relevance to the assessment of the applicant's criminal liability,
since other evidence had shown that she had been working as an
entrepreneur and cleaner at the relevant time. The Court of Appeal,
unlike the District Court, did not rely on statements given to the
police as evidence.
- On
1 April 2003 the Supreme Court refused the applicant leave to appeal.
II. RELEVANT DOMESTIC LAW
- The
Code of Judicial Procedure (oikeudenkäymiskaari,
rättegångsbalken) provides that a statement in a
pre-trial investigation report may not, as a rule, be admitted as
evidence in court. The court may exceptionally admit such a statement
as evidence, if the witness in question cannot be questioned before
the court (Chapter 17, article 11; Act no. 690/1997). A witness
must give testimony orally before the court. Oral evidence given
during a pre-trial investigation may be read out in court only if the
witness in question retracts an earlier statement or states that he
or she is unable or unwilling to testify before the court (Chapter
17, article 32; Act no. 571/1948).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
length of the proceedings had been incompatible with the “reasonable
time” requirement.
She
also complained that the proceedings had been unfair as a whole. In
particular, she claimed that the presumption of innocence had been
violated by the police, as the pre-trial investigation report had
contained assertions of her guilt. The police had also ignored facts
favourable to her defence and had failed to include them in the
report. She further asserted that the District Court had unlawfully,
and almost solely, relied on pre-trial statements as evidence and
that she had been denied the opportunity to obtain the attendance of
all relevant witnesses on her behalf and to examine witnesses against
her. She also complained about the District Court's assessment of the
medical evidence. She further maintained that several authorities
dealing with her case, as well as her own representative, had been
partial, since they had connections with insurance companies. She
finally asserted that several documents containing information about
her private life had been made public in the course of the
proceedings.
Article
6 reads insofar as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing within a reasonable time by an ... impartial tribunal ...
...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
- The
Court notes that the complaint about the length of the criminal
proceedings 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.
- As
to the complaint concerning the presumption of innocence, the Court
observes that the summary of the pre-trial investigation report
appears to have contained assertions of the applicant's guilt.
However, the main reason for drawing up such a report was to enable
the public prosecutor to decide whether or not to bring charges on
the basis of sufficient evidence of her guilt. As a rule, the report
is not available to the public until the trial has begun or the
prosecutor has decided not to bring charges. The summary part of the
report is not used as evidence. Taking into account the context in
which the assertions were made, this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
- The
Court recalls that the admissibility of evidence is primarily a
matter for regulation by national law and, as a rule, it is for the
national courts to assess the evidence before them. The Court's task
is to ascertain whether the proceedings considered as a whole,
including the way in which the evidence was taken, were fair.
- It
is a fundamental aspect of the right to a fair trial that criminal
proceedings should be adversarial and that there should be equality
of arms between the prosecution and defence. The right to an
adversarial trial means, in a criminal case, that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and evidence adduced by the other
party (see Rowe and Davis v. the United Kingdom [GC], no.
28901/95, § 60, ECHR 2000-II).
- All
the evidence must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument. As a rule, a
conviction should not be based on the testimony of a witness whom the
accused has not had an opportunity to challenge and question.
However, Article 6 does not grant the accused an unlimited right
to secure the appearance of witnesses in court. It is normally for
the national courts to decide whether it is necessary or advisable to
hear a particular witness (see, among other authorities, Laukkanen
and Manninen v. Finland, no. 50230/99, § 35, 3
February 2004).
- A
conviction should not be based either solely or to a decisive extent
on statements which the defence has not been able to challenge (see,
mutatis mutandis, Doorson v. the Netherlands, 26 March
1996, § 76, Reports of Judgments and Decisions 1996-II).
- As
to the allegation that the police had ignored facts favourable to the
applicant at the pre-trial stage, the Court notes that, even if that
had been the case, the applicant still had ample opportunity to
produce evidence on her own behalf before the courts in the course of
adversarial proceedings. This complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
- As
regards the complaint about the District Court having relied on
earlier statements as evidence, the Court observes that the said
court had relied on at least four statements included in the
pre-trial investigation report, one of which was the applicant's. It
would appear from the documents that the applicant had in court, at
least partially, retracted her earlier statement. The case materials
also suggest that the other statements were admitted as evidence
because the witnesses in question had been unwilling to testify
before the court. The Court does not have to decide whether those
statements played a decisive role in the applicant's conviction. It
notes in this connection that, unlike the District Court, the Court
of Appeal, which also held an oral hearing, did not rely on the
above-mentioned statements as evidence. Any possible disadvantages
caused to the applicant by the District Court's decision to admit and
rely on those statements as evidence were, therefore, remedied in the
appellate proceedings. In these circumstances, this complaint must
also be rejected as manifestly ill-founded in accordance with Article
35 §§ 3 and 4 of the Convention.
- As
to the complaints about the applicant not being given the opportunity
to obtain the attendance of all relevant witnesses or to examine
witnesses against her and the District Court's allegedly incorrect
assessment of the medical evidence, the Court would make the
following observations. In her letter of appeal to the Court of
Appeal, the applicant requested that 24 persons be heard. The court
received testimony from 17 of them. Most of the witnesses who were
not heard before the court were independent medical experts who
normally, under the national legislation, only give a written
statement but are not heard in person. However, two medical experts,
called by the applicant, were heard before the Court of Appeal.
Unlike the District Court, the Court of Appeal, which gave reasons
for its decision, did not regard the medical evidence as relevant in
deciding the matter. In these circumstances the Court cannot conclude
that the adversarial nature of the proceedings was disrespected or
that the national courts exceeded their margin of appreciation in the
admission and assessment of evidence. It follows that these
complaints must be rejected as manifestly ill-founded in accordance
with Article 35 §§ 3 and 4 of the Convention.
- The
applicant's allegations about partiality are unsubstantiated and must
be rejected as manifestly ill-founded in accordance with Article 35
§§ 3 and 4 of the Convention.
- As
regards the complaint about the alleged public disclosure of
documents containing information about the applicant's private life,
the Court notes that she has failed to establish that she had raised
this complaint at the domestic level. Consequently, it must be
rejected under Article 35 §§ 1 and 4 of
the Convention for non-exhaustion of domestic remedies.
B. Merits of the length of proceedings complaint
- The
period to be taken into consideration began on 19 April 1995, when
the applicant was first questioned by the police, and ended on
1 April 2003 when the Supreme Court refused leave to
appeal. It thus lasted almost eight years for three levels of
jurisdiction.
- 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).
- The
Government pointed out that the case was somewhat complex. The police
had had to prepare several pre-trial investigation reports which had
been transferred to the prosecutor on different dates. The
proceedings before the District Court had concerned two defendants
and six plaintiffs, and at that stage the case file already consisted
of 2,250 pages. The District Court's hearing had comprised 19
sessions. In the Court of Appeal several witnesses had also been
heard and over 150 written items of evidence presented. The Court
takes note of these observations, but considers that they do not
justify the entire length of the proceedings, notwithstanding that
the facts of the case were disputed.
- The
Government further submitted that on one occasion the applicant had
requested an adjournment of the pre-trial investigation and that the
hearing of the case had to be adjourned on another occasion, inter
alia, for the purpose of summoning her to the court. These
adjournments took up some two months. Moreover, the examination of
the case had been adjourned 15 times. Three of these adjournments had
been requested by the applicant. On one occasion the case was
adjourned in order to hear a witness called by her. These
adjournments altogether took up some eight months. Other parties had
requested adjournments on five occasions. In the Government's
understanding, the applicant had not objected to these requests. The
remaining adjournments had been requested by the prosecutor. The
delivery of the District Court's decision had been postponed three
times in order to await the delivery of judgment in the civil
proceedings concerning the applicant's disability pension. These
postponements, which altogether took up over a year and ten months,
had been made twice on the initiative of the prosecutor and another
party and once on the initiative of the court. The applicant had not
objected to the postponements.
- In
the Government's view, the proceedings in the District Court had been
adjourned at the applicant's request or as the direct result of her
actions for a total period of some two years and eight months,
including the postponement of the delivery of the court's decision.
- In
conclusion, the Government asserted that there were no unnecessary
delays in the proceedings caused by the authorities. The conduct of
the parties, including the applicant, contributed to a significant
extent to the length of the proceedings. She had not claimed in her
requests for leave to appeal to the Supreme Court that the
proceedings had lasted too long. In view of the requirement of
ensuring the proper administration of justice, a thorough examination
of the case was necessary. In the particular circumstances of the
case, it had to be concluded that the proceedings were conducted
within a reasonable time in accordance with Article 6 § 1 of the
Convention.
- The
Court notes that the total length of the proceedings cannot be
explained by the conduct of the applicant alone. The District Court
proceedings alone lasted some four years and two months. While it is
true that some delays resulted from the applicant's requests for
adjournment, the Government have not persuaded the Court that the
postponement of the delivery of the District Court's judgment pending
the resolution of parallel civil proceedings, which resulted in a
delay of one year and ten months, was necessary. Furthermore, the
Government have not offered any explanation for the length of the
proceedings before the Court of Appeal, which took up more than two
years. While the Government stressed that the applicant had not
objected to the adjournments requested by other parties or to the
postponement of the delivery of judgment, the Court does not find
that this can be regarded as conduct either contributing to the
length of the proceedings or an implied renunciation of her right to
a fair trial within a reasonable time.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to that in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading 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
- 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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 250,000 euros (EUR) in respect of pecuniary damage
and EUR 135,340 in respect of non-pecuniary damage.
- The
Government contested these claims stating, firstly, that there was no
causal link between the alleged violation of Article 6 of the
Convention and any pecuniary damage claimed by the applicant. As to
non-pecuniary damage, the Government considered the applicant's claim
exorbitant as to quantum. In the event that the Court were to
find a violation of Article 6 of the Convention, compensation for
non-pecuniary damage should not exceed EUR 3,000.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. As regards non-pecuniary damage, having regard to
the circumstances of the case and deciding on an equitable basis, the
Court awards the applicant EUR 3,300.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,300
(three thousand three hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
