CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 janvier 2003

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Pellonpää ,   Mr   A. Pastor Ridruejo ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and   Mr   M. O’Boyle , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 22   March 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Elina Salonen and Jirka Ståhl, are Finnish nationals, born in 1978 and 1976 respectively and living in Helsinki. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 6 December 1997 the applicants and four other animal rights activists attempted to colour the fur of foxes kept at a farm in Orimattila, when its owner fired at them with a shot gun, injuring three of them, including the first applicant. They were apprehended by the police on 6 December 1997 at 3.30 a.m. on their way to hospital. One of them was later admitted for hospital care. On 9 December 1997 at 11.40 a.m. Senior Police Officer T.H. of the Central Criminal Police in Vantaa telephoned judge R. at the Lahti District Court ( käräjäoikeus, tingsrätt ) to convey a detention request concerning “four suspects”, including the applicants. The respective written requests received at the District Court in the afternoon of the same day stated the applicants’ name, address and identity number and indicated that they were under suspicion for having committed the following offences: one count of aggravated violation of domestic peace in Orimattila on 6 December 1997 at 2.40 p.m.; three counts of aggravated damage to property in the region of Pohjanmaa (Ostrobothnia) on 2-3 September 1997; and six counts of damage to property in Helsinki on 7-8 November 1997. The requests were accompanied by a memorandum by T.H. setting out the facts in more detail.   The second applicant’s continued detention was considered by the District Court on 9 December 1997 from 7 to 8 p.m. and the first applicant’s detention was examined from 9 to 10 p.m. They received copies of the detention request immediately prior to the respective hearings. Before the District Court, defence counsel argued that the detention request concerning the second applicant was inadmissible as it had not been submitted in proper and lawful form before noon. According to the minutes from the hearing, T.H. contested counsel’s argument as he had informed the court before noon that the request concerned four arrested persons held in Lahti and connected to the events at the fox farm in Orimattila. In addition, T.H. had informed the court that their detention was being sought in respect of the acts committed in Ostrobothnia and Helsinki as well. In dismissing counsel’s objection the District Court found as follows: “Since the head of the investigation [T.H.] informed the court orally, on the third day before noon as prescribed by law, that he was going to request ( ilmoittanut tulevansa vaatimaan) the detention of four persons in respect of one count of aggravated violation of domestic peace committed in Orimattila, three counts of aggravated damage to property and six counts of damage to property, and even though he did not at that stage indicate the names of those whose detention was being sought, [his] request was nevertheless confirmed in writing without delay. As there was no risk of any error occurring in respect of the persons and the offences in question, [the court] finds that the detention request was made in accordance with the law.” The District Court went on to dismiss the detention request in respect of all but the first applicant, who was ordered to remain in detention until 16 December 1997 on suspicion of having committed the three counts of aggravated damage to property and the six counts of damage to property, as indicated in the request. The District Court further ordered that the case-file, with the exception of the detention order and the legal provisions applied, be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed. The District Court applied section 9, subsection 3, of the 1984 Act on Publicity of Court Proceedings ( laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984). On 10 December 1997 the first applicant filed a procedural appeal ( kantelu ) with the Kouvola Court of Appeal ( hovioikeus, hovrätt ), contending that the detention request had not been made in accordance with the law as it had not been filed in writing without delay. The written request had been faxed to her counsel’s office only at 2.20 p.m. and counsel himself had received it around 4.00 p.m. In any case, the offences specified in support of the request did not correspond to those which T.H. had apparently communicated to judge R. over the telephone. In a written statement to the Court of Appeal judge R. explained that in his telephone call to the District Court which T.H. had placed on 9 December before noon he had first informed a court secretary that he was seeking the detention of four arrested persons connected with the events that had occurred at a fox farm in Orimattila. Immediately thereafter T.H. had informed judge R. that their detention was also being requested for the acts committed in Ostrobothnia and Helsinki. Although T.H. had not at that time specified the names of the four suspects in question, judge R. found that there was no uncertainty as to their identities and the offences of which they were suspected. She had therefore concluded that the detention request had been submitted in accordance with law. In its decision of 12 December 1997 the Kouvola Court of Appeal agreed with the District Court, finding that at the time when the detention request had been presented over the telephone there had been no uncertainty as to the fact that the request concerned, among others, the second applicant or as to the offences of which she was being suspected. The Court of Appeal maintained the District Court’s secrecy order and further ordered that its own decision, again with the exception of the operative part and the legal provisions applied, also be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed.   The Supreme Court ( korkein oikeus, högsta domstolen ) refused the first applicant leave to appeal on 25 February 1998. The decision bore a stamp indicating that it was “secret”. It contained the standard reasoning which the Supreme Court relies on when refusing leave to appeal, without referring to the applicable legal provision (see “Relevant domestic law”):   “Leave to appeal is refused. The Court of Appeal’s decision therefore stands.” In the meantime, the first applicant’s detention had been prolonged. On 7 January 1998 the Vaasa Court of Appeal had ordered her release, having accepted her further procedural appeal of 2 January 1998. This appellate court, noting the progress in the pre-trial investigation, found that her continued detention was no longer necessary in order to secure an effective investigation and trial. B.     Relevant domestic law and practice According to Chapter 1 of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslag 450/1987, as amended by Acts nos. 361/1990 and 693/1997), an arrested person and his or her legal counsel shall be notified without delay of a request for detention on remand (section 11). Such a request shall be made to the court without delay and not later than 12.00 hrs on the third day from the day of the apprehension of the suspect (section 13). The request shall be made in writing. It may also be submitted orally or by telephone but shall then be confirmed in writing without delay (section 12). According to an expert opinion relied on by the applicants, an oral or telephone request must identify the person, the offence of which he or she is being suspected as well as the ground for the detention ( Helminen, Lehtola and Virolainen: Uusi esitutkintalainsäädäntö . Helsinki 1990). A request for detention on remand shall be considered by the court without delay and not later than four days from the moment the suspect was placed in custody (section 14). An arrested person shall be released immediately when the conditions for his or her arrest no longer exist. If his or her detention on remand is not requested, the release shall take place no later than at the expiry of the aforementioned period for submitting such a request (section 4). Chapter 1, section 27 of the Coercive Measures Act stipulates that a procedural appeal against detention on remand may be submitted at any time and shall be dealt with expeditiously. In its precedent no. 1995:180 the Supreme Court (by 11 votes 10) held that it was not prevented from introducing a leave requirement for such appeals. Under the 1951 Act on Publicity of Official Documents ( laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/1951, as in force until repealed by Act no. 621/1999), official documents were in principle public (section 1). They included not only documents drawn up and issued by an authority but also documents submitted to an authority and which remained in its possession (section 2, subsection 1). A pre-trial investigation record, however, was not public until the matter had been brought before a court or the police investigation had been closed without charges being brought (section 4). The 1984 Act on Publicity of Court Proceedings ( laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984, as amended by Act no. 1254/1988) affords the court the option of holding a hearing in camera , inter alia when examining a request for detention on remand to be dealt with prior to the actual trial, provided such a request has been made by the head of the pre-trial investigation or the suspect himself or if the court deems it necessary to exclude the public from the hearing (section 5a). If the suspects requests a detention hearing in camera , the public shall be allowed to attend only for a particularly weighty reason. If a detention hearing has been held in camera in whole or in part or if, during such a hearing, any confidential document or information has been submitted, the court may decide that all or part of the case material shall be kept confidential until the beginning of the trial or the discontinuation of the investigation. The operative part of the reasoning and the legal provisions relied on shall always be made public (section 9, as amended by Act no. 1254/1988). Under chapter 30, sections 2 and 3 of the Code of Judicial Procedure ( Oikeudenkäymiskaari, Rättegångs Balk ) the Supreme Court may only on certain circumscribed grounds grant leave to appeal against a decision or judgment rendered by a court of appeal in appeal proceedings. COMPLAINTS 1.   The applicants complain under Article 5 § 1 of the Convention that their detention on 9 December 1997 from noon onwards was not “in accordance with a procedure prescribed by law” in that no individualised detention request was received by the District Court prior to that deadline as fixed by domestic law.    2.   The applicants further complain under Article 5 § 2 of the Convention that they were not immediately informed of the detention requests and the reasons therefor. This information was given to them only in the late evening of   9 December 1997 in connection with the respective detention hearings. 3.   The first applicant further complains under Article 5 §§ 3 and 4 of the Convention that the Supreme Court failed to meet the domestic law requirement of diligence in examining her request for leave to appeal against the detention order as upheld by the Court of Appeal. Her trial did not therefore take place within a reasonable time. 4.   The first applicant further complains under Articles 5 and 6 of the Convention that the Supreme Court’s decision was marked “secret”, although this had not been reflected in its reasoning and domestic law required that at least the operative part (in this case the refusal of leave of appeal) and the applied legal provisions remain public. 5.   The first applicant finally complains under Articles 5 and 13 of the Convention that the Supreme Court failed to examine the merits of her appeal, in contradiction to domestic law which does not make such an examination dependent on leave to appeal. THE LAW 1.   The applicants have complained that their detention on remand was not “in accordance with a procedure prescribed by law” in that no individualised detention request was received by the District Court prior to the deadline fixed by domestic law. They invoke Article 5 § 1 of the Convention which, in so far as relevant, reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” In the Government’s opinion the complaint is manifestly ill-founded. According to Chapter 1, section 12 of the Coercive Measures Act, a detention request may be submitted by telephone on condition that it is confirmed in writing without delay. It appears from the District Court’s decision that T.H. telephoned the court at 11.40 a.m. with the information that he would submit a request for the detention of four arrested persons held in Lahti, suspected of aggravated violation of domestic peace that had taken place in Orimattila, of three counts of aggravated damage to property that had taken place in Ostrobothnia, and of six counts of damage to property that had taken place in Helsinki. Although T.H. did not provide the names of the suspects over the telephone but only in his subsequent written request, both the District Court and the Kouvola Court of Appeal considered the telephone request detailed enough and thus lawful. At the time the case   also appeared in the headlines in Finland due to its exceptional character. The identities of the arrested persons, including the applicants, were therefore generally known. Therefore, even though the telephone request was not as detailed as the written one, no risk of an arbitrary detention existed. The Government submitted, moreover, that even if it has not been possible to establish a person’s identity by the time a request for his or her detention must be made or the person released, that deficiency does not render the court’s detention order unlawful. The police and the courts must be able to seek and proceed to a detention even in such a case. The Government finally noted that it was not in dispute that the written detention request had been faxed to the applicants’ counsel’s office on 9 December 1997 at 2.20 p.m., i.e. less than three hours after the telephone request and thus “without delay”.   The applicants contend that even an oral request made over the telephone must properly specify the identities of those whose detention is being sought. Moreover, an oral request and a subsequent written request must be identical in contents. The applicants furthermore contest that their identities were generally known at the time of the telephone request. As they had been taken directly to the police station on their arrest no outsiders had been involved and the identities of the suspects under arrest were unknown to media and the general public at the time when their detention was ordered. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The Court may – and should – nevertheless exercise a certain power to review whether national law has been observed (see Douiyeb v. the Netherlands [GC], no. 31464/96, §§ 44-45, 4 August 1999 and Kawka v. Poland , no. 25874/94, § 47, 9 January 2001, both unreported). The Court must be satisfied that the detention under consideration was “lawful” and compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner. In this field it is particularly important that the general principle of legal certainty is satisfied. It is essential that the conditions for deprivation of liberty under domestic law should be clearly defined, and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law should be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, the Steel and Others v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2735, §   54).   The Court notes at the outset that the applicants do not dispute that the detention orders issued in their respect served at least one of the three purposes set out in Article 5 § 1 (c). The Court will therefore limit its examination to the question whether the procedure resulting in those orders being issued failed to comply with the Coercive Measures Act, in which case they were not “lawful” for the purposes of Article 5 § 1. The Court notes that under Chapter 1, section 13, of the Coercive Measures Act a request for detention shall be made to the competent court   by noon on the third day from following the suspect’s   apprehension. Under section 12 the request may be submitted orally or by telephone on condition that it be confirmed in writing “without delay”. Under section 11 an arrested person and his or her legal counsel shall be notified “without delay” of a request for detention on remand. It is undisputed that the telephone request was made before noon and was thus “lawful” for the purpose of the time-limit fixed in section 13. I t is undisputed that this request did not indicate the identities of the suspects whose detention was being sought. T he applicants have referred to the opinion of specialists on the Coercive Measures Act, according to whom an oral or telephone request must identify the person, the offence of which he or she is suspected as well as the ground for the detention. However, the domestic courts involved in the present case apparently did not read such a requirement into section 12. Having regard to the terms of that provision, the Court cannot find that the courts’ interpretation of domestic law was arbitrary or otherwise manifestly wrong. It therefore accepts that the detention request was lodged and examined “in accordance with the law”. The Court further notes that the office of counsel for the applicants was informed of the detention request at 2.20 p.m., which in the Court’s view meets the requirement that counsel be informed   “without delay”. In so far as that section 12 of the Coercive Measures Act entailed a requirement that the applicants themselves be informed “without delay” of the detention request, the Court takes note of the fact that they were arrested at the time and considers that the detention request was duly presented to them “without delay” at the respective hearings in the evening of 9 December 1997. Summing up, the Court finds that the procedure whereby an oral detention request made within the prescribed time-limit was followed up by a written request within a few hours and which was immediately passed on to counsel discloses neither abuse of authority nor bad faith nor arbitrariness on the part of the police or the District Court. Accordingly, there is no indication of any violation of Article 5 § 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention.   2.   The applicants have further complained that they were not immediately informed of the detention requests and the reasons therefor. This information was given to them only in the late evening of 9 December 1997 in connection with the respective detention hearings. They invoke Article 5 § 2 which reads as follows: “2.     Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, for example, the H.B. v. Switzerland judgment, no. 26899/95, § 44, 5 April 2001, unreported). The Court notes that the applicants’ grievance in substance refers only to the fact that they received notice of the detention request immediately prior to the respective hearings held for deciding on that request. This grievance has already been dealt with under Article 5 § 1 above. As there is no complaint that the applicants were not informed of, or able to understand, the reasons for their prior arrest, no issue arises under this provision. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention.   3.   The first applicant has further complained that the Supreme Court failed to meet the domestic law requirement of diligence in examining her request for leave to appeal against the detention order as upheld by the Court of Appeal. She invokes Article 5 §§ 3 and 4 which read as follows: “3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The scope for flexibility in interpreting and applying the notion of “promptness” is limited. Even a terrorist suspect’s police custody lasting four days and six hours without a “prompt” review by a judicial authority has been considered to fall outside the constraints as to time permitted by the first part of Article 5 § 3 (see Brogan and Others v. the United Kingdom , judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62). Article 5 § 4 entitles arrested or detained persons to take proceedings bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. In addition, the domestic court dealing with such matters must provide the “guarantees of a judicial procedure”. The proceedings must be adversarial and must always ensure equality of arms between the parties – the prosecutor and the detainee. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required.   Article 5 § 4 guarantees no right, as such, to appeal against decisions ordering or extending detention as the above provision speaks of “proceedings” and not of “appeal”. The intervention of one organ satisfies the requirements of Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. Where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see the Grauzinis v. Lithuania judgment, no. 37975/97, 10 October 2000, §§ 30-32, unreported). The Court finds that the applicants were brought “promptly” before a judge within the meaning of Article 5 § 3, since judge R. decided, less than four days after their arrest, and after having heard them in person, to grant the detention request in respect of the first applicant and to refuse it in respect of the second applicant. The Court furthermore finds that the length of the proceedings by which the first applicant was able to challenge the lawfulness of her detention in the form of a procedural appeal complied with the requirement of “speediness” in that they lasted two days; from 10 to 12 December 1997. Regard should also be had to the fact that while her procedural appeal remained pending before the Supreme Court until 25 February 1998 she was able, on 2 January 1998, to file with the Vaasa Court of Appeal a fresh request for her release which was granted on 7 January 1998. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention.   4.   The first applicant has also complained that the Supreme Court’s decision was marked “secret”, although this had not been reflected in its reasoning and domestic law required that at least the operative part and the applied legal provisions be made public. In this respect she has invoked Articles 5 and 6 of the Convention.   (a) The Court has consistently held that the intervention of a single “court” competent to review the lawfulness of an arrest or detention will satisfy Article 5 § 4 only on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. In order to determine whether a proceeding provides adequate guarantees regard must be had to the particular nature of the circumstances in which such proceedings take place ( Wassink v. the Netherlands , judgment of 27 September 1990, Series A no. 185-A, p. 13, § 30). The Court notes that section 9 of the Act on Publicity of Court Proceedings, as in force at the time, entitled the competent courts to order that its detention decisions concerning the first applicant should remain secret, with the exception of the operative part and the legal provisions applied, until the first hearing of the charges against her or until the pre-trial investigation against her had been closed. Such orders were indeed issued by the District Court and the Court of Appeal.   Given that this grievance addresses only the Supreme Court’s decision to refuse leave to appeal, the Court need not resolve the question whether Article 5 § 4 presupposed that the District Court’s and the Court of Appeal’s   decisions be rendered public beyond the aforementioned extent. It is true that the Supreme Court’s decision to refuse the first applicant leave to appeal also bore a stamp indicating that it was “secret”. It is in the   nature of a refusal of leave to appeal that it does not contain an operative part similar to that which a lower court arrives at after a full examination of the case. In refusing leave to appeal the Supreme Court was only required to consider whether the first applicant’s case disclosed one of the grounds – enumerated in chapter 30, section 3 of the Code of Judicial Procedure – warranting an examination of its merits. The Supreme Court did not therefore enter into a review of the lawfulness of the first applicant’s detention. Nor was the Supreme Court required to indicate the legal provision entitling to refuse leave to appeal. In these particular circumstances and bearing in mind that the lower courts made public the operative part of their respective decisions as well as the legal provisions relied on the Court finds no appearance of any violation of Article 5 § 4 in this respect either.   It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention.   (b) Article 6 § 1 reads in its pertinent part as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” The Court notes that the proceedings complained of were only related to the question of detention and did not amount to a “determination” of a “criminal charge” against the applicant in question. Article 6 does not therefore apply. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article   35 §§   3 and   4.   5.   The first applicant has finally complained under Articles 5 and 13 of the Convention that the Supreme Court failed to examine the merits of her appeal, in contradiction to domestic law which does not make such an examination dependent on leave to appeal. The Court finds no indication that the procedure complained of was not in accordance with domestic law as interpreted by the Supreme Court. The applicant in question was able to obtain a full review of the detention order by resorting to a procedural appeal to the Kouvola Court of Appeal. Article 5 or 13 cannot be interpreted as requiring a full examination of her further appeal to the Supreme Court. Accordingly, there is no indication of any violation under Article 5 or 13.   It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Michael O’Boyle   Nicolas Bratza   Registrar   President