CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 septembre 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC65EB21A { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:-14.2pt } .sA456029A { width:14.2pt; text-indent:0pt; display:inline-block } .s8FB79571 { width:14.15pt; text-indent:0pt; display:inline-block } .s9B9C8843 { width:13.68pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .sF2492270 { width:14.36pt; text-indent:0pt; display:inline-block } .sE4C86F0B { width:12.35pt; text-indent:0pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s45AE5F73 { font-family:Arial; letter-spacing:-0.15pt } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s988562EE { width:30.55pt; display:inline-block } .sC66E01D3 { width:215.45pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 13265/02 by Gunnar KARLSSON and Others against Finland The European Court of Human Rights (Fourth Section), sitting on 5   September 2006 as a Chamber composed of:     Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   M. Pellonpää ,   Mr   S. Pavlovschi ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 14 March 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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 applicants, Mr Gunnar Karlsson, Ms Siv Jönsson, Mr Uno Karlsson and Ms Margareta Gustavsson are Swedish nationals who were born in 1945, 1944, 1950 and 1945, respectively, and live in Sweden. They are represented before the Court by Mr Christian Holmsten, a lawyer practising in Vaasa. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. In November 1992 and March 1995, a forest in Kerklax in the municipality of Maxmo, owned by S., a relative of the applicants, was sold to a company Österbottens Träd Ab for FIM 88,633.70 (EUR 14,907) and 13,317.10 (EUR 2,240) respectively. On 14 July 1995, S. died. The applicants became beneficiaries of his estate. On 9 January 1996 the applicants filed a criminal complaint with the police in Vörå, Finland (which later became Korsholm police) against O., S.’s brother. They alleged that the sales of 1992 and 1995 were not executed by S., but by O. for his own or his son R.’s benefit. They submitted various documents to support their allegations. On 23 January 1996 one witness was questioned. On 11 March 1996 the police interrogated O., who told the police that the proceeds of the sales of the forest were paid to his son R. According to the pre-trial investigation report the police questioned the applicants on 31 March 1998, 7 April 1998, 12 August 1998 and 28 August 1999. In these interviews the applicants stated that they sought damages from O. and/or R. On 28 August 1999 the police interrogated R., who lived in Sweden, by telephone. R. was never heard in person by the police. On 31 August 1999 the police concluded their investigations. On 2   May   2000 the public prosecutor lodged charges against O. and R. before the District Court ( käräjäoikeus, tingsrätten ) of Korsholm. On 15 June 2000 the court held a hearing. On 29 June 2000 the District Court convicted O. and R., who had denied the charges, of aggravated theft and aggravated receiving of stolen goods respectively, and sentenced them to seven months’ and six months’ conditional imprisonment respectively. The court ordered them jointly to pay damages to the applicants. O. and R. appealed to the Court of Appeal ( hovioikeus, hovrätten ) of Vaasa. On 8 May 2001 it held an oral hearing. On 7 June 2001 the court reversed the judgment of the District Court, acquitting O. and R. and quashing the decision on damages. The appellate court excluded the pre-trial statement by R. as it had not been obtained from him in person but by telephone. Furthermore, it found that there was not enough evidence of any criminal conduct concerning the forest sale of 1992. As to the sale of 1995, the court found that it was unclear who had signed the contract. On 19 July 2001 the applicants applied for leave to appeal from the Supreme Court, claiming, inter alia , that the Court of Appeal should have referred the case to the District Court for reconsideration. When the court excluded R.’s pre-trial statement as evidence, R. was allegedly able to tailor his statements before the domestic courts to fit the statements of the complainants and witnesses. They further claimed that the pre-trial investigation, which had lasted over three and a half years, had not been carried out properly. On 18 October 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal. B.     Relevant domestic law Section 2, subsection 1 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslag ; Act no. 449/1987) provides that the police or another investigation authority shall carry out a pre-trial investigation when, on the basis of a report made to it or otherwise, there is reason to believe that an offence has been committed. According to section 5 of the said Act (Act no. 692/1997) the civil-party claim of the injured party has to be clarified in the pre-trial investigation, if the injured party has requested the public prosecutor to pursue his/her claim at the trial. Section 6 of the said Act provides that a pre-trial investigation shall be carried out without undue delay. Section 22 of the said Act (as in force at the relevant time) provided that a person to be interrogated had to be present in person. However, in cases of minor significance, a suspect could give his/her statement through an attorney or by telephone, provided that he/she did not deny the alleged offence. Under Chapter 3, section 1 of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; Act   no.689/1997) a civil claim arising from the offence for which a charge has been brought, may be heard in connection with the charge. If such a claim is lodged separately, the provisions on civil procedure apply. Section 9, subsection 1 of the said Act provides that on the request of the injured party, the public prosecutor shall pursue the civil claim of the injured party, arising from the offence for which the charge has been brought if this is possible without major inconvenience and if the claim is not manifestly ill-founded. Under subsection 2 the injured party shall lodge his/her request during the pre-trial investigation or with the prosecutor. He/she shall also provide an account of the circumstances on which the claim is founded. Section 21 of the Constitution of Finland ( perustuslaki, grundlagen ; Act     no. 731/1999) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority. This section is equivalent to section 16 of the repealed Constitution Act of Finland of 1918 ( Suomen Hallitusmuoto, Regeringsform för Finland ), as in force at the relevant time. COMPLAINTS   The applicants, who were joined as a civil party to the criminal proceedings, complained about the excessive length and in particular the procrastination and incompetence shown by the police in the proceedings. THE LAW 1. According to the applicants, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1. The parties’ submissions The Government argued that the application could be considered incompatible ratione materiae with the Convention. The case concerned a dispute over a civil right connected to the outcome of criminal proceedings. Since the applicants’ civil claim turned out to be unfounded at the end of the criminal proceedings, the Government submitted that it might be problematic to consider such a dispute to be covered by the civil limb of Article 6 § 1. In the Government’s opinion the application was in any event manifestly ill-founded as the length of the proceedings was not excessive. They left it to the Court’s discretion to determine whether the proceedings, in the particular circumstances of the case, began on 9 January 1996 or on 15   June   2001 when the District Court held its hearing. They asserted that the consideration of the applicants’ civil claim did not begin until the criminal case was before the District Court. As to the conduct of the parties, they observed that the applicants did not delay the proceedings. They conceded that it took some time for the police to finalise their investigation. One reason for this appeared to be that R. had several times promised to report to the police to be interrogated but he never appeared. This, in the Government’s view, prolonged the investigation. They stressed that the prosecutor and the courts acted with the expedition required by Article 6 § 1. As to what was at stake, the Government submitted that the significance of the case for the applicants was financial. They aimed at increasing their shares of the estate through criminal proceedings and the related financial claim. However, as the charges were dismissed, the related financial claim no longer had any basis. The applicants contested the Government’s view on the applicability of Article 6. They submitted that all parties to domestic court proceedings, irrespective of their status, must have a right to a fair hearing within a reasonable time as required by Article 6. They found the time which elapsed in the investigation by the police unacceptably long. There was a period of inactivity of two and half years between March 1996 when O. was interrogated and August 1998 when R. was finally interrogated by phone. Usually a pre-trial investigation does not take more than three to six months. In their view, as a long time had elapsed since the alleged offence, witnesses at the trial could no longer remember all the details of the case. The applicants also asserted that their interest in the case was not only financial: they also wished to have their criminal complaint examined within a reasonable time. 2. The Court’s assessment The Court notes that the applicants were not the accused but the injured party in the proceedings. Thus, the criminal limb of Article 6 § 1 does not apply. As regards the applicability of Article 6 § 1 under its civil head, the Court reiterates that Article 6 § 1, under its “civil head”, applies only to proceedings concerning the “determination” of a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law (see among other authorities Acquaviva v. France , judgment of 21 November 1995, Series A no. 333, p. 14, § 46). The Court recalls that the Convention does not confer any right, as demanded by the applicants, to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see, inter alia , Perez v. France [GC], no.   47287/99, §   70, ECHR 2004 ‑ I). As to the present case, the Court notes that the applicants were beneficiaries of S.’s estate. They reported an offence to the police alleging that O. had sold forest which had belonged to S. During the pre-trial investigation they specified that they had claims against the suspects for the damage caused by the offence alleged. Later the prosecutor brought charges against O. and R. The applicants joined the proceedings as parties. They did not only seek O. and R.’s conviction. They also sought to secure financial reparation for the damage sustained. In view of this, the Court can accept that Article 6 is applicable under its civil head. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender   v.France [GC], no. 30979/96, § 43, ECHR 2000-VII). At the outset the Court has to assess the period to be taken into account in the present case. The Government left it to the Court’s discretion to determine whether the proceedings in the particular circumstances of the present case already began when the applicants reported an offence to the police or later when the District Court held its first hearing. The applicants, for their part, maintained that the proceedings began on 9 January 1996 when they requested the police to investigate whether O. had committed an offence. It was not contested that the proceedings ended on 18 October 2001 when the Supreme Court refused leave to appeal. The Court notes that it was only on 31 March 1998, 7 April 1998, 12     August 1998 and 28 August 1999 when the applicants specified their civil-party claims to the police. Thus, it could be said that the proceedings started to run from those dates. In any event, even if the length of the proceedings was to be calculated from 9 January 1996, the total length was some five years and nine months, for three levels of jurisdiction, including the pre-trial investigation. The Court finds that the case was not complex. Nor does it find any delays which could be attributable to the applicants. As to the conduct of the authorities, the Court notes that the domestic courts dealt with the matter speedily – it took less than one year and six months in three instances. Consequently, the Court sees no reason to criticise the handling of the case before the domestic courts. In contrast, the pre-trial stage lasted in total almost three years and eight months. It took a further eight months or so before the charges were lodged. The time taken by the pre-trial investigation appears, at first sight, to have been on the long side. The Court observes, however, that the police questioned the other suspect and one witness within a few months after the applicants had lodged a criminal complaint. The applicants were questioned two years later. The police’s apparent difficulty in arranging for the interrogation of R., the other suspect, is understandable since he did not live in Finland and failed to respond to the police. As regards the matter at stake, this was not of such a nature as to require special expedition (c.f. Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299 ‑ A, § 69). The Court finds, having regard to the above and taking into account the length of the proceedings as a whole, especially the speedy court proceedings, that the total length of the proceedings did not exceed what can be considered reasonable within the meaning of Article 6 § 1 of the Convention. 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 also complained under Article 6 of the Convention that the police were incompetent in carrying out the pre-trial investigation. Given its above findings, the Court finds that the remainder of the complaint does not disclose any appearance of a violation. 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 Decides to discontinue the application of Article 29 § 3 of the Convention; and Declares the application inadmissible.   T.L. Early   Nicolas Bratza   Registrar   President