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FOURTH
SECTION
CASE OF HUHTAMÄKI v. FINLAND
(Application
no. 54468/09)
JUDGMENT
STRASBOURG
6
March 2012
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 Huhtamäki v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
George
Nicolaou,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54468/09)
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 Ari-Matti Antero Huhtamäki (“the
applicant”), on 25 September 2009.
- The
Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The
applicant alleged under Articles 6 and 7 of the Convention
that, in particular, he had not had a fair trial as he
had been convicted for an ancillary offence when the
perpetrator of the principal offence had been acquitted.
- On
27 September 2010 the President of
the Fourth Section decided to communicate the above-mentioned
complaints under Articles 6 and 7 of the Convention to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in
Helsinki.
- On
6 August 1993 a company controlled by Mr A. purchased real estate. In
summer 1997 Mr A. transferred the control over the company to another
person who, on 24 September 1997, met the applicant for the first
time. On 13 October 1997 the applicant sold the real estate, in
accordance with this other person’s instructions, on behalf of
the company to another company. On 14 October 1997 Mr A. was declared
personally bankrupt while he was at the same time charged with
dishonesty by a debtor (velallisen epärehellisyys, oredlighet
som gäldenär). On 7 November 1997, when the first
swearing of the inventory of the bankruptcy estate was held, Mr A.
refused to swear the inventory. The inventory did not include the
real estate. On 17 December 1997, when the second swearing of the
inventory of the bankruptcy estate was held, Mr A. swore the
inventory.
- On
23 June 2005 the public prosecutor brought charges against the
applicant for having concealed and obliterated, between 18 December
1997 and 12 February 1998 by, inter alia, drafting contracts
and transferring moneys, the true nature and origin of the real
estate, in reality owned by Mr A., knowing that this property
was obtained by a criminal act.
- On
16 June 2006 the Helsinki District Court (käräjäoikeus,
tingsrätten) convicted the applicant in the context of money
laundering, inter alia, of an aggravated receiving offence
(törkeä kätkemisrikos, grovt häleri) and
sentenced him to a term of imprisonment of one year and ten months
and to removal from office as a professor of commercial law. The
conviction was based on a principal offence committed by Mr A. He was
convicted on the same date by the District Court of aggravated
debtor’s fraud (törkeä velallisen petos, grovt
gäldenärsbedrägeri) and sentenced to imprisonment.
The court found that Mr A. had not declared all his assets when
swearing the inventory of his personal bankruptcy estate in 1997.
- By
letter dated 29 September 2006 the applicant appealed to the Helsinki
Appeal Court (hovioikeus, hovrätten) requesting, inter
alia, that he be acquitted.
- On
14 December 2007 the Helsinki Appeal Court upheld the judgment of the
District Court, except for the fact that the applicant’s prison
sentence was converted into a conditional one.
- By
letter dated 8 February 2008 the applicant appealed to the Supreme
Court (korkein oikeus, högsta domstolen).
- On
17 April 2009 the Supreme Court granted leave to appeal to Mr A.
The applicant was granted leave to appeal only in respect of the
removal from office and the obligation to pay costs and expenses to
Mr A.’s bankruptcy estate. As to the merits, the court upheld
the District Court’s judgment. The court found that the
information Mr A. had declined to give in 1997 was not such that it
would in all probability have provided a basis for his conviction. Mr
A. had thus not had any right to decline to give this information and
he was thus guilty of aggravated debtor’s fraud. As concerns
the applicant, the court acquitted him of the obligation to pay costs
and expenses to Mr A.’s bankruptcy estate. As to his removal
from office, the court did not change the earlier judgments. The
judgment included several dissenting opinions.
- Four
days later, on 21 April 2009, the Court delivered its judgment in the
case Marttinen v. Finland (no.
19235/03, 21 April 2009) in which it found that there had been
a violation of the applicant’s right to silence and his right
not to incriminate himself guaranteed by Article 6 § 1 of the
Convention. In that case the applicant was charged with for having
previously given false accounts of his assets at the time when
coercion was used to obtain information from him. The circumstances
of that case were identical to that of Mr A. with the only exception
that Mr Marttinen had been subject to enforcement while Mr A. was
subject to personal bankruptcy proceedings. They were both under
threat of a similar default fine and even imprisonment if they did
not agree to declare all their assets. This information could have
been used against them in other pending criminal proceedings.
- On
an unspecified date Mr A. filed an extraordinary appeal with the
Supreme Court requesting re-opening of his case on the basis of the
Court’s judgment in the Marttinen case.
- On
12 May 2009 the applicant also filed a re-opening request with the
Supreme Court as his conviction was ancillary to that of Mr A. He
also requested that the execution of his sentence be stayed as far as
the removal from office was concerned.
- On
22 May 2009 the Supreme Court refused the request to stay the
execution due to the fact that the removal from office had taken
effect on the date of the judgment, namely, on 17 April 2009, and
that there was thus no execution measure to be stayed.
- On
20 October 2009 the Supreme Court, sitting in plenum,
re-opened Mr A.’s case, dismissed all the charges against
him and freed him from the sentence imposed. The court found that Mr
A. had had a right to remain silent as he could not rule out that the
information given could be used against him in criminal proceedings.
Mr A had thus been entitled to decline to declare, inter alia,
the real estate.
- On
22 June 2010 the Supreme Court, sitting in plenum, rejected
the applicant’s request for re-opening. The court found that
even though Mr A. had had a right to remain silent, this did not mean
that the applicant’s acts to conceal assets, namely the real
estate, from A.’s creditors were justified. The effects of the
right not to incriminate oneself were limited only to the person who
was asked to submit information. A person could be convicted of a
receiving offence even if the perpetrator of the principal offence
was freed from criminal liability. The applicant’s right to a
fair trial had not been violated as no information received in
violation of the right not to incriminate oneself had been used as
evidence vis-à-vis the applicant.
- The
referendary and three justices gave a joint dissenting opinion.
According to them, there was no domestic law or jurisprudence on
whether the right not to incriminate oneself could have effects on
other persons connected to the crime in question. The Supreme Court
had already found that Mr A. had not committed the debtor’s
fraud of which he was accused. Therefore the applicant could not have
been guilty of receiving the assets that Mr A. had acquired through
debtor’s fraud, as indicated in the charges. There were no
other charges against him. Consequently, the applicant’s case
should be re-opened, all charges against him dismissed and he should
be freed from all sanctions imposed on him.
II. RELEVANT DOMESTIC LAW
1. Criminal Code
- Chapter
39, sections 2 and 3, of the Criminal Code (rikoslaki;
strafflagen, Act no. 769/1990, as in force at the relevant time)
provide the following:
“Fraud by a debtor
A debtor who, in order to obtain unlawful financial
benefit for himself or herself or another in bankruptcy, enforcement,
debt adjustment or restructuring proceedings
(1) conceals his or her property,
(2) reports a liability that is false in full
or in part, or based on a sham transaction,
(3) gives other false or misleading
information on a circumstance that is significant from the point of
view of the creditors, or
(4) fails to report a liability,
shall be sentenced for fraud by a debtor to a
fine or to imprisonment for at most two years.
If the debtor rectifies the misleading information or
otherwise prevents the effect of his or her act on the proceedings
before he or she attests to the correctness of the estate inventory
or before the misleading information otherwise affects the
proceedings, the act is not deemed fraud by a debtor.
Aggravated fraud by a debtor
If in the fraud by a debtor
(1) considerable benefit is sought or
(2) the debtor attests in court to the
correctness of the false or misleading information
and the fraud by the debtor is aggravated also when
assessed as a whole, the offender shall be sentenced for aggravated
fraud by a debtor to imprisonment for at least four months and at
most four years.”
- Chapter
32, section 1, of the Criminal Code (Act no. 769/1990, as in force at
the relevant time) provides the following:
“Receiving offence
A person who hides, procures, takes into his or her
possession or conveys property obtained from another through theft,
embezzlement, robbery, extortion, fraud, usury or means of payment
fraud or through fraud by a debtor, aggravated fraud by a debtor or
intentional deceitfulness by a debtor, or otherwise handles such
property although he or she knows that the property was thus obtained
shall be sentenced for a receiving offence to a fine or to
imprisonment for at most one year and six months.
A person shall also be sentenced for a receiving offence
if he or she
1) receives, converts, conveys or transfers
funds or other property although he or she knows that they were
acquired through an offence or replace funds or property acquired
through an offence, in order to conceal or obliterate their illegal
origin or to assist the offender in evading the legal consequences of
the offence, or
2) conceals or obliterates the true nature,
origin, location or disposition of or rights to property referred to
in paragraph 1, or conceals information about such a circumstance
which he or she is obliged to disclose under law.”
- According
to Chapter 32, section 2, of the same Code:
“Aggravated receiving offence
If the object of the receiving offence is very valuable
property and the receiving offence is aggravated also when assessed
as a whole, the offender shall be sentenced for an aggravated
receiving offence to imprisonment for at least four months and at
most four years.”
- According
to Chapter 5, section 7, of the Criminal Code (Act no. 15/2003,
as in force at the relevant time),
“[w]here a special circumstance vindicates,
mitigates or aggravates an act, it applies only to the perpetrator,
inciter or abettor to whom the circumstance pertains.
An inciter or abettor is not exempted from penal
liability by the fact that he or she is not affected by a special
circumstance related to the person and said circumstance is a basis
for the punishability of the act by the perpetrator.”
2. Code of Judicial Proceedings
- Chapter
31, section 14, subsection 1, of the Code of Judicial Proceedings
(oikeudenkäymiskaari, rättegångs balk, Act no.
109/1960) provides the following:
“If the request for the reversal of a final
judgment is upheld and it is deemed necessary to retry the case, the
Supreme Court shall order the deadline, the court and the manner in
which the case is to be brought for a retrial. However, the Supreme
Court shall have the right to immediately rectify the judgment, if
the case is found to be clear and the request does not concern the
reversal of a judgment in a criminal case to the detriment of the
defendant.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of
the Convention that he had not had a fair trial as he had been
convicted of an ancillary offence when the perpetrator of the
principal offence had been acquitted.
- Article
6 § 1 of the Convention reads, in the relevant parts, as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
Admissibility
- The
Government pointed out that, according to the Court’s case-law,
Article 6 of the Convention did not apply to extraordinary appeal
proceedings. This part of the complaint was thus incompatible ratione
materiae with the provisions of the Convention.
- The
applicant acknowledged that the Government had correctly cited the
Court’s case-law. However, in the present case, the
extraordinary proceedings were a continuation of the main
proceedings. The Supreme Court decided, as the first and only
instance, a central argument regarding the basis for the applicant’s
criminal liability. The charges against the perpetrator of the
principal offence, Mr A., had been dismissed in other extraordinary
proceedings to which the applicant was never a party. The Supreme
Court should have reopened the case and referred it back to the
Appeal Court for ordinary proceedings. What the Supreme Court did in
the present case was to decide, as the first and only instance, on
the applicant’s guilt, on the basis of facts that had changed
and without holding an oral hearing. It decided that the changed
facts did not have an influence on the outcome of the matter. Article
6 should apply to the present case because the Supreme Court in fact
determined a criminal charge against the applicant.
- The
Court notes that the applicant is complaining under Article 6 of the
Convention that he did not have a fair trial as he remained convicted
of an ancillary offence when the perpetrator of the principal offence
was acquitted. When the ordinary proceedings ended on 17 April 2009,
both the applicant and Mr A. were convicted. It was only on 20
October 2009 when the Supreme Court re-opened Mr A.’s case,
dismissed all the charges against him and freed him from the sentence
imposed, that the situation changed. The applicant is thus in fact
complaining about the fairness of the extraordinary appeal
proceedings which took place after the ordinary proceedings had
already finished. The applicant was not convicted for the first time
in these proceedings but his guilt had already been established in
2006 and 2007 during the ordinary proceedings and his conviction was
only maintained in the extraordinary appeal proceedings.
- The
Court notes that, according to the domestic law, the Supreme Court
has the competence, under Chapter 31, section 14, subsection 1, of
the Code of Judicial Proceedings, to retry the case immediately after
having reopened it. In the present case, however, the Supreme Court
rejected the applicant’s request for re-opening on 22 June 2010
and there was no retrial. These proceedings thus did not concern any
issue other than whether to reopen the ordinary proceedings or not.
As Article 6 of the Convention is not applicable to extraordinary
appeal proceedings, the Court considers that this complaint is
incompatible ratione materiae with the provisions of the
Convention. This complaint must therefore be declared inadmissible
within the meaning of Article 35 § 3 (a) and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant complained under Article 7 of the
Convention that, according to the Finnish Criminal Code, an
individual could not be convicted of an ancillary offence without
convicting the perpetrator of the principal offence.
- Article
7 of the Convention reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government maintained that the wording of the Criminal Code in
respect of a receiving offence showed that punishment of a principal
offence was not a prerequisite for the punishability of an ancillary
offence. The principal offence could go unpunished for example when
the perpetrator was unaccountable or immune from jurisdiction. The
principal offence might also be statute-barred even if the receiving
offence was not. Convicting a person of a receiving offence did not
necessitate either that the perpetrator of the principal offence be
known or that it be known from where the property concealed had, for
example, been stolen. In this sense a receiving offence was treated
as an independent act.
- The
Government pointed out that the Supreme Court had confirmed in its
judgment of 22 October 2009 that attributing the aggravated receiving
offence to the applicant did not violate the legality principle laid
down in Article 7 of the Convention. It was clear that, after a
person was declared bankrupt, that person could no longer possess any
property lawfully. The applicant must have considered it possible
that, at the material time, concealing and obliterating the origin of
property possessed by a bankrupt person could lead to prosecution and
conviction.
- The
Government stressed that, according to Chapter 5, section 7, of the
Criminal Code, where a special circumstance vindicated, mitigated or
aggravated an act, it applied only to the perpetrator, inciter or
abettor to whom the circumstance pertained. The principal offence
preceding a receiving offence did not need to be punishable in
concreto in order for the receiver to be sentenced but an offence
in abstracto was a sufficient precondition. This principle had
been very clear since the end of the 19th century. The fact that the
Supreme Court, when dismissing the charges, also dismissed the
compensation claims, did not as such allow a conclusion that the
right not to incriminate oneself was a ground of justification. The
court might have simply not paid any attention to the compensation
claims, and thus its decision did not influence the applicant’s
case. The legality principle had not been breached in the present
case as the Supreme Court had only fulfilled its task of interpreting
domestic law.
- The
applicant pointed out that there had been a violation of Article 7 of
the Convention as the essential elements of the crime in the present
case had not been fulfilled. The applicant had been charged with
having concealed property which Mr A. had obtained by a criminal act,
namely property which Mr A. had failed to declare. In Finland only a
failure to declare property was criminalised, not the failure to
surrender property to a bankruptcy estate. From the legality point of
view, it was difficult to interpret the term “not to declare
property” in a way that would lead to “acquiring
property”. If Mr A. was no longer under a duty to declare
property, to what property illegally acquired did the applicant’s
indictment refer? Mr A did not acquire any property as the real
estate concerned was already in his possession. The essential
elements of the crime with which the applicant was charged were thus
not fulfilled.
- The
applicant further pointed out that even if there existed a legal
basis in Finnish law for the applicant’s conviction, the
quality of that law was not in accordance with Article 7 of the
Convention. In the Finnish system, the dismissal of a charge did not
automatically mean that claims for damages arising from the same
facts should also be dismissed. In the present case the Supreme
Court, when dismissing the charges against Mr A., also dismissed
the compensation claims. This meant that the Supreme Court itself
regarded Mr A.’s right not to incriminate himself as a ground
of justification and not a ground of excuse. This highlighted the
poor quality of the law: this law was at the time, and still is
today, very much unforeseeable as regards situations like the
applicant’s.
2. The Court’s assessment
- The guarantee
enshrined in Article 7, which is an essential element of the rule of
law, occupies a prominent place in the Convention
system of protection, as is underlined by the fact that no derogation
from it is permissible under Article 15 of the Convention in time of
war or other public emergency. It should be construed and applied, as
follows from its object and purpose, in such a way as to provide
effective safeguards against arbitrary prosecution, conviction and
punishment (see S.W. v. the United Kingdom, 22 November 1995,
§ 35, Series A no. 335 B; and C.R. v. the United
Kingdom, 22 November 1995, § 33, Series A no. 335 C).
- Accordingly,
it embodies, in general terms, the principle that only the law can
define a crime and prescribe a penalty (nullum crimen, nulla poena
sine lege) (see Kokkinakis v. Greece, 25 May 1993, §
52, Series A no. 260 A). While it prohibits in particular
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused’s
detriment, for instance by analogy (see Coëme and
Others v. Belgium, nos. 32492/96, 32547/96, 32548/96,
33209/96 and 33210/96, § 145, ECHR 2000-VII; Achour
v. France [GC], no. 67335/01, § 41, ECHR 2006 IV;
and Kononov v. Latvia [GC], no. 36376/04, § 185,
ECHR 2010).
- When speaking of “law” Article 7 alludes
to the very same concept as that to which the Convention refers
elsewhere when using that term, a concept which comprises statute law
as well as case-law (see, mutatis mutandis, The Sunday Times
v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A
no. 30; Kruslin v. France, 24 April 1990, § 29, Series A
no. 176 A; and Casado Coca v. Spain, 24 February
1994, § 43, Series A no. 285 A). In this connection,
the Court has always understood the term “law” in its
“substantive” sense, not its “formal” one. It
has thus included both enactments of lower rank than statutes and
unwritten law (see, in particular, mutatis mutandis, De
Wilde, Ooms and Versyp v. Belgium, 18 June
1971, § 93, Series A no. 12). In sum, the “law” is
the provision in force as the competent courts have interpreted it
(see Leyla Şahin v. Turkey [GC], no. 44774/98, § 88,
ECHR 2005-XI).
- Furthermore, the term “law” implies
qualitative requirements, including those of accessibility and
foreseeability (see, among other authorities, Cantoni v. France,
15 November 1996, § 29, Reports of Judgments and Decisions
1996 V; Coëme and Others v. Belgium, cited above, §
145; and E.K. v. Turkey, no. 28496/95, § 51, 7 February
2002). These qualitative requirements must be satisfied as regards
both the definition of an offence and the penalty the offence in
question carries (see Achour v. France [GC], cited
above, § 41). An individual must know from the wording of the
relevant provision and, if need be, with the assistance of the
courts’ interpretation of it, what acts and omissions will make
him criminally liable and what penalty will be imposed for the act
and/or omission committed (see, among other authorities, Cantoni
v. France, cited above, § 29). Furthermore, a law may still
satisfy the requirement of “foreseeability” where the
person concerned has to take appropriate legal advice to assess, to a
degree that is reasonable in the circumstances, the consequences
which a given action may entail (see, among other authorities,
Cantoni v. France, cited above, § 35; and
Achour v. France [GC], cited above, § 54).
- The
Court has acknowledged in its case-law that however clearly drafted a
legal provision may be, in any system of law, including criminal law,
there is an inevitable element of judicial interpretation. There will
always be a need for elucidation of doubtful points and for
adaptation to changing circumstances. Again, whilst certainty is
highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which, to a
greater or lesser extent, are vague and whose interpretation and
application are questions of practice (see, mutatis mutandis,
The Sunday Times v. the United Kingdom (no. 1), cited above,
§ 49; and Kokkinakis v. Greece, cited
above, § 40). The role of adjudication vested in the courts is
precisely to dissipate such interpretational doubts as remain (see,
mutatis mutandis, Cantoni v. France, cited above).
- Turning
to the present case, the Court notes that the applicant was convicted
of an aggravated receiving offence in accordance with Chapter 32,
sections 1 and 2, of the Criminal Code, as in force at the relevant
time. The applicant claims that, under these provisions, one could
not be convicted of an ancillary receiving offence without convicting
the perpetrator of the principal offence. The Court must thus examine
whether these provisions and their application were in accordance
with Article 7 of the Convention.
- The
Court notes at the outset that, according to Chapter 32, section 1,
of the Criminal Code, a person who hides, procures, takes into his or
her possession or conveys property obtained from another through,
inter alia, aggravated debtor’s fraud, or otherwise
handles such property although he or she knows that the property was
thus obtained shall be convicted of a receiving offence (see
paragraphs 21 and 22 above). The Court finds that the provision in
question does not give rise to any ambiguity or lack of clarity as to
its content. The provision was thus foreseeable at the time when the
applicant committed the offence of which he was initially convicted.
Furthermore, the Court notes that, at the same time when the
applicant was convicted of an independent but related receiving
offence (see paragraphs 7 and 8 above), Mr A. was convicted of
aggravated debtor’s fraud and sentenced to imprisonment. The
Court therefore finds that, at the time of the applicant’s
initial conviction in 2006 and 2007, all the elements required by
Chapter 32, section 1, of the Criminal Code were in place, and that
the situation was in full compliance with the requirements of Article
7 of the Convention.
- The
Court notes that this state of affairs may have changed on 20 October
2009 when the Supreme Court re-opened Mr A.’s case, dismissed
all the charges against him and freed him from the sentence imposed.
The Court notes that the Supreme Court found in its decision of
22 June 2010 that the effects of the right not to incriminate
oneself were limited only to the person who had been asked to submit
information. A person could be convicted of a receiving offence even
if the perpetrator of the principal offence was freed from criminal
liability. Similarly, the Government argued in their observations
that the principal offence preceding a receiving offence did not need
to be punishable in concreto in order for the receiver to be
sentenced but an offence in abstracto was a sufficient
precondition.
- The
Court notes that, at the time when the impugned acts were committed
by the applicant on 18 December 1997 and onwards, the Criminal Code
required that the received property had to be property which was
acquired by an offence. In the present case, the offence took place
on 17 December 1997 when Mr A fraudulently did not declare the
property, including the real estate, to the bankruptcy estate.
However, when the Supreme Court later found that Mr A had had a right
not to declare this property and when he was consequently acquitted,
there existed no longer a crime in concreto. The Supreme Court
was divided as to whether a crime in abstracto was a
sufficient element to maintain the applicant’s conviction, the
majority of the justices finding that it was.
- The
Court observes that the Supreme Court was facing in the present case
a new situation in which it had to take a stand for the first time on
the issue of whether the right not to incriminate oneself could have
effects on other persons connected to the crime in question. Both
domestic law and jurisprudence were silent on this point.
- The
Court reiterates that Article 7 of the Convention cannot be read as
outlawing the gradual clarification of the rules of criminal
liability through judicial interpretation from case to case, provided
that the resultant development is consistent with the essence of the
offence and could reasonably be foreseen (see S.W. v. the United
Kingdom, cited above, § 36; and Streletz, Kessler and
Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §
50, ECHR 2001-II). Even when a point is ruled upon for the first time
in an applicant’s case, a violation of Article 7 of the
Convention will not arise if the meaning given is both foreseeable
and consistent with the essence of the offence (see Jorgic v.
Germany, no. 74613/01, § 114, ECHR 2007 III; and
Custers and Others v. Denmark, nos. 11843/03, 11847/03 and
11849/03, 3 May 2007). In the present case, the Court finds that both
alternative interpretations were foreseeable and consistent with the
essence of the offence in question.
- Moreover,
according to the Court’s general approach, it does not question
the interpretation and application of national law by national courts
unless there has been a flagrant non-observance or arbitrariness in
the application of that law (see, inter alia, Société
Colas Est and Others v. France, no. 37971/97, § 43,
ECHR 2002-III and, mutatis mutandis, Lavents v. Latvia,
no. 58442/00, § 114, 28 November 2002). The Court is unable to
find such non-observance or arbitrariness in the present case.
- Having
regard to all these considerations, the Court concludes that the
Supreme Court could, acting within its margin of appreciation,
maintain the applicant’s conviction also in the changed
circumstances.
- Accordingly,
there has been no violation of Article 7 of the Convention.
III. REMAINDER OF THE APPLICATION
- Lastly,
the applicant complained that the decision of 8
June 2009 by the Supreme Court not to stay the execution of the
removal from office was contrary to Article 7 of the Convention. It
would be against the legality principle if, after a possible final
acquittal of charges, he were still subject to the removal from
office which had taken effect already on 17 April 2009. In his letter
dated 16 August 2010 the applicant also complained under Article 6
of the Convention that the extraordinary appeal proceedings in the
Supreme Court were not fair.
- Having
regard to the case file, the Court finds that the matters complained
of do not disclose any appearance of a violation of the applicant’s
rights under the Convention. Accordingly, this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 7
admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 7 of the Convention.
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring opinion of Judge De Gaetano
is annexed to this judgment.
L.G.
F.A.
CONCURRING OPINION OF JUDGE DE GAETANO
- This
judgment reaffirms the principle – enshrined in many penal
codes, as well as in national case-law and in doctrinal writings –
that a person may be found guilty of receiving stolen property (or
property obtained by fraud, misapplied or obtained by means of any
offence) even though the thief is not prosecuted or punished –
indeed, he may even be unknown – provided the actual commission
of the theft or other predicate offence is proved. In the same vein,
an accomplice may be found guilty of an offence even though the
principal offender is never prosecuted or punished, and a
co-conspirator may be found guilty of conspiracy to commit an offence
even though none of the other co-conspirators are brought to justice
(or, having been brought before the courts, are acquitted). Nothing
in all this suggests, even minimally, a violation of Article 7 of the
Convention.
- What
appears to have been problematic in this case is the fusion (or
confusion) at the domestic level of two separate issues – the
question of the autonomy of the applicant’s trial, in line with
the principle mentioned above (see § 49, last sentence), and the
entirely separate and independent question of the extent to which the
privilege against self-incrimination affected third parties involved
in an offence (§ 50, first sentence). To compound matters
further, unhelpful arguments have been advanced (see § 38) based
on the communicability or otherwise (as between principal and
accomplice) of personal and/or real circumstances involved in the
commission of an offence.
- In
the instant case, in view of the principle mentioned in para. 1,
supra, it would appear that it was unnecessary to invoke the
margin of appreciation in § 53.
