Lars Johan AHLSKOG v Finland - 5238/07 [2010] ECHR 1944 (9 November 2010)

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The European Court of Human Rights (Fourth Section), sitting on 9 November 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

1. The applicant, Mr Lars Johan Ahlskog, is a Finnish national who was born in 1929 and lives in Kokkola. He was represented before the Court by Mr Jukka Autio, a lawyer practising in Espoo. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

3. On 25 October 2000 the bankruptcy estate of Oy Maple House Ab requested the local police to investigate whether the applicant had committed debtor’s dishonesty by using company funds for his own private purposes between 1994 and 1999. The police recorded the criminal complaint and searched the applicant’s premises on the same day in order to find documents needed for the administration of the bankruptcy estate and to deliver them to the liquidator. The head of investigation ordered an interim measure on 23 November 2000 and requested on 29 November 2000 that the District Court issue an injunction in respect of the disposal of the applicant’s property. On 18 December 2000 the District Court ordered that the applicant’s property to a value of 1,100,000 Finnish Marks (some 185,000 euros) be frozen.

4. The applicant was interrogated for the first time on 19 March 2001. The pre-trial investigation ended on 2 August 2001 when the investigation material was forwarded to the prosecutor.

6. The case was referred further to the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, riksåklagarämbetet). It appears from the first State prosecutor’s application of 22 August 2001 for an extension of the time prescribed for bringing charges and from the investigator’s letter that the final statement of the applicant was received as late as 14 August 2001. The prosecutor filed the application for a summons on 13 November 2001.

7. A second State prosecutor was assigned to this case and to another case concerning the applicant in January 2004.

8. The case became pending before the Kokkola District Court (käräjäoikeus, tingsrätten) on 13 November 2001. In December 2001 the District Court requested the complainant to present his claims. In January 2002 the summons was served on the applicant and he filed his response on 27 February 2002.

9. In spring 2002 the applicant started to involve himself in the work of his legal counsel, for example by challenging it, filing submissions with the District Court without informing the (first) counsel and alleging that the latter was guilty of criminal conduct. In spring and summer 2002 the applicant filed more than 200 pages of submissions regarding counsel’s alleged criminal activity and the alleged violation of official duty by the prosecutor.

10. On 20 September 2002 the applicant’s (first) counsel was dismissed, and the District Court started to look for new counsel, but none was appointed because of a lack of candidates. The court tried to solve the counsel problem during spring and summer 2003 and finally on 15 September 2003 appointed new (second) counsel.

11. On 19 September 2002 the applicant’s spouse informed the District Court that the applicant had become very ill and she filed a medical certificate to that effect on 10 October 2002. On 10 March 2003 the applicant filed additional medical certificates with the court. On 11 March 2003 the court requested the applicant to provide further information about the certificates, according to which his medical examination and treatment were still ongoing between March and June 2003.

12. On 9 September 2003 the District Court held a consultation which the applicant also attended.

13. Before ruling on the case, the District Court waited for judgment in another case. The latter case was heard in December 2003 and decided on 6 February 2004.

14. In April 2004 the District Court drew up a timetable for processing the case and sent it to the applicant for information.

16. At the preparatory session on 26 August 2004 the District Court found that extensive additional preparation in writing was necessary.

17. During the additional preparation, which lasted the whole of autumn 2004, the applicant requested an extension of the time prescribed for issuing the defendant’s statement. Further, the applicant requested that another pending case be joined to the case. The District Court rejected the latter request.

18. On 20 January 2005 the District Court adopted a procedural decision in view of the procedural motions and claims presented during the preparation in writing. At the same time, the court decided that the proceedings would be continued in respect of one count only. Another count was left to await the judgments of the Supreme Court (korkein oikeus, högsta domstolen) and the European Court of Human Rights (application no. 75619/01).

19. For the count to be processed, the District Court prepared a proposal in February 2005 regarding the main hearing and sent it to the parties for comment. In April 2005 the applicant requested that the main hearing should not be held on the date proposed. On 20 April 2005 the court rejected the request, confirmed the procedure, and decided to hold the main hearing on 15 to 16 and 20 to 22 June 2005.

20. On 15 June 2005 the applicant was brought by the police before the District Court. When arriving in the courtroom he announced that he had an appointment with a doctor and left the court using that excuse. He failed to appear at the main hearing the next day and could not be contacted.

21. On 20 June 2005 the District Court received a medical certificate according to which the applicant was unable to work between 16 and 30 June 2005. The District Court set 11 July 2005 as the new hearing date.

22. During the main hearing on 22 June 2005, a witness testimony pointed to a new fact, which caused the applicant to request an additional investigation.

23. On 5 July 2005 the District Court asked the applicant’s counsel about the possibility of hearing the applicant at his home. The applicant declined, stating that that course of action would be unreasonable.

24. On 11 July 2005 the applicant did not appear at the main hearing. During the hearing, the applicant’s counsel successfully requested interim measures and a new hearing date. The District Court set 4 August 2005 as the new hearing date.

25. On 4 August 2005 the applicant again failed to appear at the hearing. The court then made a consolidated procedural decision concerning the applicant’s repeated absence, holding that he had intentionally evaded the proceedings.

26. On 11 August 2005 the District Court dismissed the charges of aggravated debtor’s dishonesty but imposed a fine on the applicant due to his repeated absence from court. The injunction remained in force.

27. The prosecutor appealed against the judgment of the District Court and presented an alternative description of the alleged criminal act before the Vaasa Court of Appeal (hovioikeus, hovrätten). The applicant also appealed to the Court of Appeal in respect of the fine imposed by the District Court.

28. On 2 March 2006 the Court of Appeal decided to refer the case back to the District Court. The court found that as the prosecutor had provided the court with an alternative description of the criminal act and an alternative victim, new documentary evidence and new witnesses, a new hearing was required. In addition, the court noted on its own initiative that the applicant had not been heard in person before the District Court, even though he risked being sentenced to imprisonment. The fact that the charges were later dismissed was not known at the time of the main hearing and the applicant should therefore have been heard in person. In addition, the precautionary measure was quashed.

29. On an unspecified date the applicant sought leave to appeal to the Supreme Court.

31. The case became pending for the second time before the District Court on 31 January 2007. The case was assigned to a judge who took office on 1 July 2007. The case could not be assigned to another judge as they had all been either processing or had already adjudicated the applicant’s, his son’s or their companies’ cases which all were interconnected in one way or another. The applicant had entered several disqualification pleas and made several procedural and criminal complaints against the judges.

32. The District Court judge responsible for the case had telephone contacts with the applicant and his spouse in summer and early autumn 2007. At that time, a number of other cases concerning the applicant were pending before the District Court. The applicant proposed that his other pending cases should not be heard simultaneously because of his state of health. The judge agreed that the proposal was justified. The court did not start to hear the case immediately but heard another criminal case of the applicant first. When the court passed judgment in the other case on 17 December 2007, the applicant requested that the judgment be supplemented or rectified.

33. In February 2008 a summary of the case was sent to the parties for statements. During March and April 2008 the District Court made efforts to agree on the date of the preparatory session with the prosecutor and counsel of the parties. On 15 April 2008 the parties were summoned to the preparatory session to be held on 17 June 2008. In order to accelerate the preparatory session, the court sent the applicant’s counsel on 13 May 2008 a request to reply and on 10 June 2008 a request to supplement the reply given to the court.

34. During the preparatory session on 17 June 2008, the District Court and the parties discussed the possibility of joining certain cases. It was agreed unanimously that at least two weeks should be reserved for the main hearing.

35. On 4 and 14 November 2008 the District Court decided to extend the time prescribed for the applicant’s submissions.

36. On 12 November 2008 the court decided not to withdraw the assignment of the applicant’s counsel. It appears from the case file that the applicant opposed on occasion withdrawing counsel’s assignment, sometimes himself requesting that the assignment be withdrawn.

37. On 5 December 2008 the District Court decided to join some of the applicant’s cases. On that date the court also rejected the applicant’s request for an expert opinion.

38. On 2 February 2009 the applicant brought charges for violation of official duty against the judge responsible for his case just before the beginning of the main hearing. Moreover, he entered disqualification pleas against nearly all actors in the proceedings just before the start of the main hearing.

39. On 2 February 2009, when the main hearing was to begin, the applicant failed to appear in court. On 3 February 2009 the court ordered that the applicant be brought to the courtroom. The applicant requested that the main hearing be cancelled and challenged the jurisdiction of the court to try his case.

40. On 20 March 2009 the District Court convicted the applicant on five different counts, inter alia, for aggravated debtor’s dishonesty and sentenced him to a conditional term of imprisonment of 1 year and 2 months. The District Court expressly took into account the length of the proceedings when passing sentence.

41. The applicant, invoking the nature and scope of the case, requested that the time for appeal to the Court of Appeal be extended. On 8 April 2009 the District Court agreed to the request and set 30 April 2009 as the new date for the appeal. The date for the counter-appeal was fixed for 14 May 2009.

Second set of proceedings before the Court of Appeal and before the Supreme Court

43. On an unspecified date the Court of Appeal adopted a partial decision concerning the withdrawal of the order appointing the applicant’s counsel. The applicant requested leave to appeal to the Supreme Court against the said decision.

46. According to Chapter 6, section 7, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 515/2003),

"[i]n addition to what is provided above in Section 6, grounds mitigating the punishment that are also to be taken into consideration are;

(3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reason lead to an unreasonable or exceptionally detrimental result."

47. In its judgment of 11 June 2004 (KKO:2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably lengthy proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case in that precedent case. In considering whether there were grounds for applying Chapter 6, section 7, subsection 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (in the precedent case over 5 and a half years) had been unreasonable. It concluded that in this case there were no grounds to waive a sentence or to mitigate the sentence owing to the duration of the proceedings.

48. In its judgment of 15 June 2005 (KKO:2005:73), the Supreme Court, applying Chapter 6, section 7, subsection 3, of the Penal Code, reduced the sentence imposed upon the applicant by six months owing to the length of the proceedings that had lasted some ten years. The court imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to mitigate the sentence further by suspending the term of imprisonment.

49. A new Chapter 19 has been added to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by Act no. 363/2009) which entered into force on 1 January 2010. This Chapter provides for a possibility to accelerate pending proceedings if there are specific reasons for so doing, inter alia, the length of the proceedings, the circumstances of the case and what is at stake for the party to the dispute. Any application for acceleration must be addressed to the District Court before which the case is pending and shall be examined by a single judge formation. A case which has been granted priority must be examined by the District Court without delay and before any other cases. The decision to grant or refuse priority cannot be separately appealed.

50. The Act on Compensation for Excessive Duration of Judicial Proceedings (laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen 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.

“This Act is applicable by general courts to litigious, non-contentious 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).”

52. 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 section 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.”

53. When evaluating 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 under Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the European Court of Human Rights of the Council of Europe is also to be taken into account.

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

55. 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 excessive duration of proceedings.

The amount of compensation is 1,500 euros 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 euros 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 section 4 or for some other comparable consideration.

The compensation amount shall not exceed 10,000 euros. This maximum amount of compensation may be exceeded in special circumstances.

There is no entitlement 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 as a reduction when determining the new compensation.”

56. 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 the pain of loss of the right of action. Such a claim cannot be lodged as late as at the Supreme Court stage without a valid reason.

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

57. According to section 8 of the Act, the public prosecutor shall use in criminal matters the right of action on behalf of the State in respect of a compensation matter while the Ministry of Justice shall use 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 this.

58. As to the decision-making, section 9 of the Act provides that the court shall decide on the compensation claim when it decides on the merits of a case. The composition 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.

“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.”

60. 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 to appeal.

61. As concerns the payment of compensation, section 12 of the Act provides that the compensation shall be paid to a party within a month of the date on which the compensation decision became final. The compensation shall be paid by the Ministry of Justice. A prohibition on attaching the compensation and its tax-fee nature is provided for by a separate provision.

62. 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 compensation complaint 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 when they had lasted six years and four months at two levels of jurisdiction, and awarded the applicants 1,500 and 2,000 euros respectively.

63. The applicant complained under Article 6 of the Convention about the length of the proceedings and under Article 4 of Protocol No. 7 to the Convention that he had been charged twice for the same offence.

64. The applicant complained under Article 6 of the Convention that the length of the criminal proceedings against him 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 ...”

65. The Government argued that the fact that the applicant had in various ways impeded the domestic proceedings and was at the same time complaining about the length of these proceedings should be regarded as an abuse of his right of individual application. Nor had the applicant exhausted the available domestic remedies as he had not requested mitigation of a possible sentence due to the length of the proceedings. Moreover, since 1 January 2010 the applicant could lodge a compensation complaint for the alleged excessive length of the proceedings with the court in charge of his case. He had failed to exhaust that new remedy. Consequently, his complaint should be declared inadmissible under Article 35 §§ 1, 3 and 4 of the Convention.

66. The applicant denied having in any way impeded the domestic proceedings and argued that he had exhausted all available domestic remedies. He had requested mitigation of his sentence due to the length of the proceedings but there was no mention of such in the domestic court’s judgment. When his application was lodged in 2007, there existed no possibility to seek compensation for excessively lengthy proceedings. Were the applicant to introduce such a complaint now, the case would remain pending for another three to four years. He did not do so, as the fastest and most comprehensive solution lay with the Strasbourg Court.

67. The Court recalls that it has already stated that the possibility of mitigation of a future sentence does not meet the standard of “effectiveness” for the purposes of Article 13 as the required remedy must be effective both in law and in practice (see Kangasluoma v. Finland, no. 48339/99, §§ 44 and 48, 20 January 2004). Moreover, the Court does not find it necessary to examine whether the applicant had impeded the course of the domestic proceedings as this complaint is, in any case, inadmissible for the reasons set out below.

68. As regards the new domestic remedy introduced on 1 January 2010, the Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

69. The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).

70. In the context of length of the proceedings cases, the Court has already stated that different types of remedy may redress the violation appropriately. Some States have understood the situation perfectly by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation. However, States can also choose to introduce only a compensatory remedy, without that remedy being regarded as ineffective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 186-187, ECHR 2006 V and the case-law cited therein). Concerning a compensatory remedy, the Court has found that an effective compensatory remedy would have the following characteristics: amounts awarded are not unreasonable; and the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly. Moreover, a State authority cannot cite lack of funds as an excuse for not honouring a judgment debt, nor should the rules regarding legal costs place an excessive burden on litigants where their action is justified (see Scordino v. Italy (no. 1) [GC], cited above, §§ 195-207 and the case-law cited therein).

71. The Court notes that both the remedy for acceleration as well as the compensation remedy have been in place in Finland since 1 January 2010. The remedy for accelerating proceedings is contained in Chapter 19 of the Code of Judicial Procedure whereas the new compensation remedy is set out in the Act on Compensation for Excessive Duration of Judicial Proceedings. However, the acceleration remedy is only available before district courts.

72. The Court notes that the new remedy 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. When they find that such a complaint is justified on the facts, the court delivers a decision to that effect. The new Act applies to litigious, non-contentious and criminal actions. A claim for compensation must be lodged with the general court in charge of the case before the close of the consideration of the merits. Such a claim cannot be lodged at the Supreme Court stage without a valid reason.

75. Thus, the Court has held that applicants in cases against Italy which concerned the 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) and Poland (see Charzyński v. Poland (dec.), cited above, § 40; and Michalak v. Poland (dec.), cited above, § 41).

76. The Court considers that the position in the present complaint is similar, in substance, to the above Italian, Croatian, Slovak and Polish cases. As in those cases, the information before the Court indicates that excessive length of proceedings has been a widespread problem in the national legal system, and that many applications have been filed against Finland in which applicants allege a violation of the “reasonable time” requirement.

77. The relevant legislative amendments in Finland were introduced following the adoption of the Kangasluoma v. Finland judgment, in which the Court emphasised that the Government had failed to demonstrate that the existing remedies met the standard of “effectiveness” for the purposes of Article 13 of the Convention (see Kangasluoma v. Finland, cited above, § 48). In this connection, the Court notes that the new remedies in Finland are clearly designed to address the problem of the lack of an effective remedy in cases concerning excessive length of civil and criminal proceedings.

78. 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 applicant in the present case.

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

80. It follows that the Government’s objection is upheld and the applicant’s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

81. The applicant also complained under Article 4 of Protocol No. 7 to the Convention that he had been charged twice for the same crime alleged against him as the case had been referred back to the District Court for examination of an alternative charge based on the same facts.

82. Having regard to the case file, the Court finds that the matter complained of does not disclose any appearance of a violation of the applicant’s rights under the Convention. Accordingly, this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Lars Johan AHLSKOG v Finland - 5238/07 [2010] ECHR 1944 (9 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1944.html Cite as: [2010] ECHR 1944