CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 janvier 2004

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Pellonpää ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego, judges , and   Mrs   F. Elens-Passos , Deputy Section Registrar , Having regard to the above application introduced on 17 March 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:                   THE FACTS The applicant,   Klaus Ketola, is a Finnish national, who was born in 1937 and lives in Mijas Costa, Spain. He is represented before the Court by Mr Petri Impola, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs, who succeeded the previous Agent, Mr Erkki Kourula, then Director-General in the Ministry. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Until the early 1990s the applicant acted as director of a local branch of a bank. In December 1992 the bank group, with which the local branch had merged, filed a criminal complaint against the applicant and an investment director of the branch, suspecting them of having abused their positions of trust. In July 1993 the complainant requested a pre-trial investigation into seven suspected offences, including aggravated embezzlement allegedly committed in   1989. The applicant was detained between 28 and 30 September 1993 and interrogated as a suspect. The pre-trial investigation was concluded on 15 December 1993 and the file was transmitted to the public prosecutor on 17 December 1993. Between January and April 1994 the applicant and another defendant commented in writing on the material on file. In his bill of indictment of 29 February 1996 the public prosecutor charged the applicant with aggravated embezzlement. He was notified of the charges in May 1996. The court proceedings against the applicant and three other defendants commenced before the Tuusula District Court (käräjäoikeus, tingsrätt) on 9   September   1996. The prosecutor had charged another defendant with aggravated embezzlement as well, whereas the two further co-defendants were charged with aiding and abetting that offence. The complainant, now a limited liability company to which the ownership of the bank group had been transferred, joined the charges and presented an accessory claim for damages and legal costs. All defendants denied the charges against them. On 10   September   1996 the prosecutor requested an adjournment in order to present further evidence. The case was adjourned until 21   November   1996, when seven prosecution witnesses gave evidence. The case was then adjourned until 30   January   1997 so as to enable the prosecutor to call additional witnesses. At the third hearing the District Court heard evidence from three further prosecution witnesses. The case was then adjourned until 21   March   1997. At the fourth hearing a witness called by one of the defendants gave evidence. The prosecutor and one of the defendants requested a further adjournment which was granted. At the fifth hearing on 23   May   1997 the District Court took evidence from a prosecution witness and three defence witnesses. At the request of one of the defendants the case was adjourned until 27   June   1997. At the sixth hearing the District Court heard two further defence witnesses. One of the defendants asked for a further adjournment in order to present additional evidence. At the seventh hearing on 15   August   1997 a further defence witness gave evidence. At the request of two of the defendants the case was adjourned until 26   September   1997. At the eighth hearing two defence witnesses gave evidence. The case was adjourned until 13   November 1997 in order to allow the parties to submit their closing arguments. At the ninth hearing the applicant requested that the complainant be ordered to reimburse his legal costs. In its judgment of 13 November 1997 the District Court acquitted all defendants and dismissed the complainant’s accessory claim for damages. Noting that the complainant had merely joined the charges brought by the public prosecutor, the court also dismissed the applicant’s claim that the complainant be ordered to reimburse his legal costs. The prosecutor, the complainant, the applicant and a co-defendant appealed to the Court of Appeal (hovioikeus, hovrätt) of Helsinki which rejected their appeals on 31   December   1998. The applicant’s acquittal acquired legal force on 2 March 1999, when the prosecutor’s and the complainant’s deadline for seeking leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) expired. On 28 September 1999 the Supreme Court refused the applicant and a co-defendant leave to appeal against the refusal of their cost claim. B.     Relevant domestic law Under Chapter 16, section 4 (2) of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken , as amended by Act no. 1052/1991 and in force at the relevant time) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint ( kantelu, klagan ) with a Court of Appeal within 30 days from the date of the adjournment. Under the said provision the district court could adjourn the case upon request by a party, for example if the said party wished to adduce further evidence. The court could not adjourn the hearing proprio motu save on special grounds. The provision in question was repealed with effect from 1 October 1997, when new provisions generally prohibited adjournments. COMPLAINTS 1.   The applicant complains that the length of the proceedings against him – over six years - exceeded a reasonable time. In particular, it took the prosecutor four years to issue his bill of indictment. 2.   The applicant also complains that the complainant was not ordered to reimburse the legal costs incurred for his defence, although the charges against him and the complainant’s accessory claim for damages were found to be groundless and the amount of the costs which he had claimed had not been disputed by the complainant. The refusal to order the reimbursement of his costs was not compatible with the requirement that the parties be placed on an equal footing and have equal arms at their disposal. Moreover, according to domestic law at the relevant time the State could not be held liable to compensate the legal costs of an acquitted defendant. The applicant invokes Article 6   §   1 of the Convention. THE LAW 1.   The applicant complains that the length of the proceedings against him exceeded a reasonable time, in violation of Article 6 § 1 of the Convention which, in so far as relevant to this case, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by [a] ... tribunal ...” The Government first argue that the complaint has been lodged belatedly. The proceedings ended on 31 December 1998 with the Court of Appeal’s judgment. The applicant’s acquittal acquired legal force on 2 March 1999 with the expiry of the period within which the prosecutor and the complainant could have sought leave to appeal to the Supreme Court. The applicant lodged his application only in March 2000. In the alternative, the Government argue that the applicant failed to exhaust domestic remedies as between 10 September 1996 and 26 September 1997 he did not object to, let alone appeal against any of the District Court’s decisions to adjourn the proceedings. Under the Code of Judicial Procedure as in force at the relevant time a party could complain to the appellate court against an adjournment. At no stage of the domestic proceedings did the applicant complain about the length of the proceedings. In the further alternative the Government consider the complaint manifestly ill-founded as the proceedings were not excessive in length. As the pre-trial investigation record was not completed until April 1994 and the decision to press charges was made in February 1996 the prosecutor spent one year and ten months considering a possible indictment. The proceedings before the District Court, if calculated from the first hearing, lasted one year and two months, or one year and almost six months if the period is counted from date of his summoning. The case was heard on nine occasions. The proceedings before the Court of Appeal lasted almost one year and two months. The total length of the proceedings therefore amounted to some two years and seven months. The Government underline that the case concerned economic crime involving exceptional financial interests. During the pre-trial investigation eight persons were heard as suspects and fifteen as witnesses, the investigation record totalling 550 pages. The legal qualification of the offences was difficult, requiring a determination as to whether the principal offence should be classified as misuse of a position of trust or as aggravated embezzlement. There was no prior case-law but at the time when charges were being considered a similar case was pending before the Supreme Court, resulting in its precedent judgment no. 1995:172 which was rendered on 13 October 1995. Therefore, it was justified for the prosecutor to await the Supreme Court’s position in that case. It is the Government’s view that the applicant’s and his co-defendants’ own conduct also affected the length of the proceedings. While at the fifth hearing the prosecutor and the plaintiff stated that they did not wish to call any further witnesses, the applicant and another defendant subsequently requested further adjournments enabling them to call defence witnesses. The Government finally point out that the applicant was detained only briefly at the beginning of the pre-trial investigation. The applicant accepts that he was finally acquitted by the Court of Appeal’s judgment of 31 December 1998 which acquired legal force on 2 March 1999 with the expiry of the time-limit for the prosecutor and the complainant to seek leave to appeal. The period of relevance for calculating the six-month rule nevertheless started on 28 September 1999, when the subject-matter of the application to the Court was finally decided, the Supreme Court having refused the applicant leave to appeal in so far as he had sought to challenge the appellate court’s refusal to order the complainant to reimburse the defence costs. As for the requirement to exhaust domestic remedies, the applicant considers that the remedy provided by Chapter 16, section 4, subsection 2, of the Code of Judicial Procedure, as in force at the time, was of an extraordinary character and did not meet the requirements of a remedy within the meaning of Article 13. Turning to the merits of his complaint, the applicant considers that the proceedings commenced on 9 December 1992, when the criminal complaint was filed against him. They ended with his acquittal which became final on 2 March 1999, having lasted over six years. As a defendant he cannot be blamed for having called his witnesses after the prosecution witnesses had been examined. The complainant’s claim for damages amounted to about FIM 9,000,000 (EUR 1,513,000) and not to FIM 100,000,000 as asserted by the Government. The case leading up to the Supreme Court precedent referred to by the Government was of no relevance to the length of the proceedings in the applicant’s case. Under Article 35 of the Convention the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The Court notes that the subject-matter of the present complaint is the length of the proceedings for the determination of the criminal charge against the applicant. It is uncontested that the charge in question was finally determined by the Court of Appeal in its judgment of 31 December 1998 which acquired legal force on 2 March 1999. The application to the Court was introduced on 17 March 2000, which is more than six months later. It follows that this complaint is introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 2.   Still invoking Article 6 § 1 of the Convention, the applicant has complained that the complainant was not ordered to reimburse the legal costs incurred for his defence, although the charges against him and the complainant’s accessory claim for damages were found to be groundless and the amount of the costs which the applicant had claimed had not been disputed by the complainant. The Court reiterates that the refusal to order the reimbursement to a former accused of his necessary costs and expenses following the discontinuation of the proceedings may raise an issue under Article 6 § 2 if supporting reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence. The right to be presumed innocent prohibits even the voicing of a suspicion as to the innocence of a person whose acquittal has become final (see S ekanina v. Austria , judgment of 25   August 1993, Series   A no.   266 ‑ A, pp. 15-16, §   30, and Leutscher v. the Netherlands , judgment of 26   March 1996, Reports of Judgments and Decisions 1996 ‑ II, p. 436, §§ 29-30). In the present case the District Court, in refusing the applicant’s cost claim after having acquitted him, based itself on the public nature of the prosecution, in which case the complainant could not be held responsible for the defence costs. That conclusion in no way amounted to a determination of the applicant’s guilt, nor to the voicing of any suspicion in that regard.   Moreover, neither Article 6 § 2 nor any other Convention provision   confers on a person charged with a criminal offence but subsequently acquitted a right to reimbursement of costs incurred in the course of the proceedings, however necessary those costs may have been (see Masson and Van Zon v. the Netherlands , judgment of 28   September 1995, Series   A no.   327 ‑ A, p.   19, §   49). Accordingly, there is no indication of any violation of Article 6 § 2. It follows that this complaint is 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. Françoise Elens-Passos   Nicolas Bratza        Deputy Registrar   President