CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 février 2009

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He was represented before the Court by Mr   Markku Fredman, a lawyer practising in Helsinki. 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, may be summarised as follows. An acquaintance of the applicant disappeared in October 2003 while visiting the applicant in Helsinki. On 21 November 2003 the police questioned the applicant, as a witness, about this disappearance. On 21 January 2004 the applicant was apprehended and arrested on suspicion of murdering his acquaintance. On 21 and 22 January 2004 he was interrogated by the police. At the latter interrogation the applicant's counsel was present for the first time. On 24 January 2004 the District Court ( käräjäoikeus, tingsrätten ) ordered in camera that the applicant be detained and that the deadline for bringing the charges was 17 June 2004. This decision was not subject to appeal. On 29 January 2004, opposing the detention, the applicant lodged, in accordance with Chapter 1, section 27, subsection 2, of the Coercive Measures Act, a complaint ( kantelu, klagan ) with the Appeal Court ( hovioikeus, hovrätten ). He claimed that there was no probable cause to believe that his acquaintance was dead, that he had been killed or that the applicant had killed him either acting alone or in concert with others. He also referred to Article 5 § 4 of the Convention. On 5   February   2004 the Appeal Court found that the complaint did not give cause to lift the applicant's detention. By application dated 26 February 2004 the applicant sought leave to appeal to the Supreme Court ( korkein oikeus, högsta domstolen ), repeating the arguments already put forward before the Appeal Court. On 20   April   2004 the court refused leave to appeal. On 3 June 2004, having heard that the public prosecutor was planning to request an extension of the time-limit for bringing the charges, the applicant's counsel informed the police that the applicant would oppose this and that he would also request a re-examination of his detention. For this reason, the counsel requested, on the basis of the Openness of Government Activities Act ( laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet ; Act no. 621/1999), that the following documents be submitted to him by the police in good time before the re-examination of the applicant's detention: -     the investigation records concerning the applicant; -     such statements made during the investigations which supported the applicant's culpability or demonstrated contradiction as to his statements; -     the records of the technical investigation conducted in the apartment suspected to be the crime scene, including the records drawn up of the investigation conducted by the police dogs which had “marked” the apartment in a way that led to the conclusion that there had been a deceased person in the apartment; -     a copy of the documents that spoke against the applicant's guilt; as well as -     transcriptions of the wiretapping and of the monitoring of telecommunications to the extent such transcriptions supported the supposition that a murder had been committed and that the applicant was involved in it. In general, the applicant's counsel wished to obtain clarification concerning the matters which had arisen in the course of the investigation, as referred to in the Criminal Investigations Act ( esitutkintalaki, förundersökningslag; Act no. 449/1987). He wished to obtain for example the preliminary introduction to the forthcoming investigation records, if such an introduction had been drafted. On 11 June 2004 the applicant's counsel received from the police the investigation records and the records drawn up of the investigation conducted by the police dogs. He was told that the transcriptions of the wiretapping and of the monitoring of telecommunications were included in the investigation records. On 17 June 2004 the chief of police confirmed this by a decision which was subject to appeal. According to the said decision, the applicant was denied access to the other documents on the basis of sections 11 and 24, subsection 3, of the Openness of Government Activities Act as the investigation was pending and access to such documents would have compromised the investigation of the matter. In addition, the applicant was denied access, on the basis of s ection 11 of the Criminal Investigations Act, to an overall report on the state of the criminal investigation on the same grounds. Finally, according to the decision, there were no documents speaking against the applicant's guilt. On 15 June 2004 the public prosecutor requested an extension of the time-limit for bringing the charges. In this connection the applicant's counsel found out that another person who was under suspicion for the same crime had been detained by the same District Court on 13 June 2004. The applicant's counsel requested copies of the detention order and the application for it. On 16 June 2004 the public prosecutor denied access to these documents by referring to the fact that the District Court had examined the matter in camera . Moreover, the District Court had declared the application for detention and its appendices, and most parts of the detention order confidential. Due to the denial, these documents were consequently withdrawn, in the applicant's case, from the documents submitted to the court by the public prosecutor. Moreover, the prosecutor stated that the police investigation of the matter was still pending and the matter had not yet been referred to the prosecutor for the consideration of charges. Consequently, any information concerning the investigation was to be given by the police, not by the prosecutor. The applicant's counsel was given directions on how to appeal, should the public prosecutor's refusal be considered as a decision against which an appeal lay. On 16 June 2004 the applicant requested the District Court, when examining the request for extension of the time-limit, also to re-examine the matter of his detention. On 17 June 2004 the matter was examined before the District Court. The applicant opposed the extension of the time-limit and claimed that the public prosecutor and the court had had greater access to the files than he. He denied the existence of a probable cause. The District Court decided to extend the time-limit for bringing the charges until 30   September 2004 and to hold the applicant in pre-trial detention. By way of reasoning, it stated that, according to the information received from the police and the public prosecutor, nothing in the criminal investigation had lessened the degree of probable cause which had formed the basis of the applicant's initial detention. This decision was not subject to appeal. The applicant was subsequently convicted of murder. B.     Relevant domestic law and practice According to Chapter 1, section 22, subsections 1 and 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslag ; Act no. 450/1987, as amended by Act no. 646/2003 entering into force on 1 January 2004), if a suspect of a crime has been detained, the court deciding on the charges as the first instance must re-examine the detention matter promptly, and at the latest within four days from the request, if a detainee makes such a request. The issue of detention does not need to be re-examined earlier than two weeks after the previous examination. Moreover, when re-examining the detention matter, the detainee or his or her counsel must be provided with an opportunity to be heard, unless it is deemed unnecessary. A detainee must be heard in person if he or she so requests or if the court deems it necessary. Chapter 1, section 24, of the same Act provides that a court must release a detainee immediately if it considers that the conditions for the detention no longer exist. Under Chapter 1, section 27, subsections 1 and 2, of the same Act, there is no ordinary appeal against a decision given in a detention matter but it is nevertheless possible for a detainee to challenge the detention by lodging a complaint ( kantelu, klagan) with the competent court. The Turku Appeal Court released, for example, in the case KKO   2000:115, a detainee who had lodged a complaint, as the conditions for the detention no longer existed. COMPLAINTS The applicant complained under Article 5 § 4 of the Convention that, since the relevant pre-trial documents gathered before the hearing on 17   June 2004 had not been communicated to him, he had had no means to challenge the lawfulness of his detention. Moreover he complained, under the same Article, that the District Court had had at its disposal the documents relating to the other person's involvement in the case whereas he had had no such access. THE LAW The applicant complained that, due to non-communication of certain pre-trial documents to him and a lack of access to certain documents at the disposal of the District Court, he had had no means to challenge the lawfulness of his detention at the hearing held on 17 June 2004. He referred to Article 5 § 4 of the Convention, which reads as follows: “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.” As to the admissibility of the applicant's complaints, the Government submitted that the applicant had not exhausted the domestic remedies available to him. In particular, the applicant had not lodged a complaint under Chapter 1, section 27, subsection 2, of the Coercive Measures Act against the decision to prolong the detention made by the District Court on 17 June 2004. Moreover, the Government maintained that the applicant had not appealed against the decision of 17 June 2004 by the chief of police either. The duration of the proceedings could not be regarded as such a special circumstance that would have absolved the applicant from the obligation to exhaust the domestic remedies at his disposal. Moreover, it could not be said with certainty how long the administrative proceedings would have lasted in the applicant's case. Accordingly, the remedy in question had been effective. The applicant contested the Government's arguments. He claimed that an appeal against the decision of 17 June 2004 by the chief of police was a remedy available to him only in theory as such appeal proceedings, including a possible further appeal to the Supreme Administrative Court, would have lasted from one to two years. In any event, no final decision could have been obtained before 30 September 2004, that is, before the date when the charges were to be brought at the latest. In the applicant's opinion, the remedy in question could thus not be regarded as effective. As concerns the complaint under Chapter 1, section 27, subsection 2, of the Coercive Measures Act invoked by the Government, the Court notes that the District Court had initially decided on the applicant's detention on 24   January 2004 and that the detention was reviewed on 17   June 2004 by the same court. After the initial decision on detention, the applicant lodged a complaint with the Appeal Court and a further appeal with the Supreme Court, in accordance with Chapter 1, section 27, subsection 2, of the Coercive Measures Act. However, he lodged no such complaint against the District Court's decision of 17 June 2004. The Court must thus examine whether the applicant should have lodged, for the purposes of exhausting domestic remedies, a complaint also against that decision. The Court refers to its case-law to the effect that an applicant should not usually be required to use at very short intervals a remedy which by its nature might be repeated an indefinite number of times (see Rieme v. Sweden , 22 April 1992, § 50, Series A no. 226 ‑ B, Guzzardi v. Italy , 6   November 1980, § 80, Series A no. 39, and Chraidi v. Germany , no.   65655/01, § 29, ECHR 2006 ‑ ). The re-examination of a case may, however, be appropriate where new facts have emerged which could furnish a separate basis for a fresh decision. In cases of continued detention, for instance, the prolongation of the detention in itself may under certain circumstances justify a re-examination of the question of release (see Lynas v. Switzerland , no. 7317/75, Commission decision of 6 October 1976, Decisions and Reports 6, p. 167). In the present case, the applicant's complaints concern only the District Court proceedings of 17 June 2004 and the non-communication of and the lack of access to certain documents related to these proceedings. The applicant requested, in particular, that certain material gathered during the pre-trial investigations be submitted to him, material that did not exist at all or existed to a very limited extent in January 2004 when the initial decision on his detention was made. Taking into account that the higher national courts would have been able to remedy the possible shortcomings in the District Court proceedings as well as the passage of time since the initial detention decision in January 2004, the Court considers that these were such significant new facts which would have required that the applicant lodge a complaint under Chapter 1, section 27, subsection 2, of the Coercive Measures Act also against the decision of 17 June 2004. Since he failed to do so, the Court concludes that the application must be declared inadmissible under Article 35   §§ 1 and 4 of the Convention due to the non-exhaustion of domestic remedies. Having regard to the above conclusion and the fact that the administrative courts have no jurisdiction to order release from detention, the Court does not consider it necessary to examine the other admissibility argument brought by the Government. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President