CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 27 janvier 2015

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s46C79669 { width:202.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   FOURTH SECTION DECISION Application no. 20998/13 Tenho Robertino ÅKERLUND against Finland The European Court of Human Rights (Fourth Section), sitting on 27   January 2015 as a Committee composed of:   George Nicolaou, President,   Päivi Hirvelä,   Nona Tsotsoria, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 20 March 2013, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Tenho Robertino Åkerlund, is a Finnish national, who was born in 1986 and lives in Julkujärvi. He was represented before the Court by Mr Mikko Lehti, a lawyer practising in Tampere. 2.     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 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The issue at stake was reported to the police on 17 August 2009. The applicant was a complainant in criminal proceedings against another person. When he was questioned as a complainant by the police on 18 August 2009, he also claimed compensation in the matter. The pre-trial investigation of the case lasted approximately for seven and a half months. 5.     On 7 April 2010 the case was forwarded to the prosecutor for consideration of charges. The consideration of charges lasted for about a month and a half. 6.     On 20 May 2010 the prosecutor brought charges and the case became pending before the District Court ( käräjäoikeus, tingsrätten ). On 11   June   2010 the applicant specified his compensation claims to the court. On an unspecified date he also claimed compensation for the excessive duration of the proceedings in accordance with Act no. 362/2009, indicating that his claim concerned a period starting from September 2011 until the delivery of the judgment. Several attempts were made to summon the defendant to the court. On 10 September the defendant was successfully summoned to appear in court. 7.     On 20 December 2012 the District Court convicted the perpetrator and ordered him to pay the applicant 700 euros (EUR) in compensation for non ‑ pecuniary damage and EUR 50 in compensation for his costs and expenses. The applicant’s claim concerning compensation for excessive length of the proceedings was rejected. This judgment was not appealed against and it thus became final. B.     Relevant domestic law and practice 8.     The Act on Compensation for Excessive Duration of Judicial Proceedings ( laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen om gottgörelse för dröjsmål vid rättegång; Act no. 362/2009) entered into force on 1 January 2010. The Act provides for a party a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long. 9.     As to its scope of application, section 2, subsection 1, of the Act provided at the relevant time as follows: “This Act is applicable by general courts to litigious, non-contentious and criminal actions.” 10.     On 8 June 2011 the Supreme Court found in its precedent case KKO:2011:38 that the unreasonable length of a pre-trial investigation could also entitle a person to receive compensation from the relevant authorities, irrespective of whether charges were subsequently brought or not. Although this kind of situation was not mentioned in the Act, it might cause non ‑ pecuniary damage similar to that caused by delays in the actual judicial proceedings. By referring to Articles 6 and 13 of the Convention and to the human rights-friendly interpretation, the Supreme Court thus found that there was no reason to treat length accumulated during a pre-trial investigation differently depending on whether charges were subsequently brought. 11.     Even before the above precedent case, the National Police Board ( Poliisihallitus, Polisstyrelsen ) had, in May 2011, compensated a delay which had taken place during pre-trial investigation. Similarly, in January   2013, the Office of the Prosecutor General ( Valtakunnan-syyttäjänvirasto, Riksåklagarämbetet ) compensated a delay which had taken place in consideration of charges. In both decisions it was stressed that if the person in question was not satisfied with the compensation, there was a possibility to take civil action before a district court. 12.     The principles expressed in the Supreme Court’s precedent case KKO:2011:38 were subsequently incorporated into the Act on Compensation for Excessive Duration of Judicial Proceedings (as amended by Act no. 81/2013 which entered into force on 1 June 2013). Section 5 of the Act now stipulates that, in a criminal case, the time starts running from the moment when a person is informed of the suspicion against him or her, or when this suspicion has effect on him or her. COMPLAINTS 13.     The applicant complained under Article 6 § 1 of the Convention of the excessive length of the proceedings. 14.     He complained under Article 13 of the Convention about the lack of an effective remedy as, according to the domestic law, the proceedings in respect of a complainant are considered to start only when his or her claims are presented to a court, which practice is not compatible with the Court’s case-law. THE LAW 15.     The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings and under Article 13 of the Convention about the lack of an effective remedy in that respect. 16.     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 ... hearing within a reasonable time by [a] ... tribunal ...” 17.     Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 18.     The Government claimed that the applicant had no victim status in the case. The delay in the proceedings had been attributable to the defendant and the applicant’s compensation claim for excessive length had been found manifestly ill-founded. For this reason the application was incompatible ratione personae with the provisions of the Convention and it should be declared inadmissible pursuant to Article 35 §§ 3(a) and 4 of the Convention. 19.     The Government further claimed that the applicant had not exhausted the effective domestic remedies available to him and that the application should therefore be declared inadmissible. The applicant had requested compensation for excessive length before the domestic court but in respect of a different period of time than before the Court. He had requested compensation in respect of the entire proceedings for the first time only before the Court. As to the effectiveness of the domestic remedy, the Government pointed out that the Court had found the Act on Compensation for Excessive Duration of Judicial Proceedings to be an effective remedy for excessive length of proceedings in civil and criminal matters. When awarding compensation on the basis of this Act, domestic courts included also the length of the criminal investigation in the length of the proceedings. If charges were brought in the case, the parties would be able to use that remedy during the subsequent court proceedings. Even if no charges were brought, the parties could apply, in accordance with the Supreme Court’s precedent case KKO:2011:38, for compensation solely for the unreasonable length of pre-trial investigation. This precedent confirmed that there existed an effective remedy before the relevant authority for excessive length. Therefore, in the Government’s view, the applicant’s application should be rejected for non ‑ exhaustion of domestic remedies and be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. 20.     In any event, the Government found the application manifestly ill ‑ founded. The Government did not agree with the applicant that the starting date for the proceedings was 18 August 2009, when the applicant had informed the police about his intention to claim compensation from the defendant. They noted that such a claim was civil in nature and that the police had no authority or ability to decide on such claims. The civil proceedings could start only when a civil action was instituted before a court. Therefore the proceedings at issue had lasted about two and a half years, which did not exceed the “reasonable time” requirement. Moreover, the domestic remedies had been effective. 21.     The applicant claimed that the Act on Compensation for Excessive Duration of Judicial Proceedings did not offer an effective remedy for him. The Act treated the parties in a criminal case differently depending on whether they had status as an accused or a plaintiff. The grounds for such unequal treatment were unfounded. 22.     The Court notes first of all that it is not necessary for it to examine whether the applicant still has victim status or whether his application is manifestly ill-founded as his application must in any event be declared inadmissible for the non-exhaustion of domestic remedies. 23.     The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the recapitulation of the relevant case-law in Selmouni v. France [GC], no. 25803/94 , § 74, ECHR 1999-V). 24.     The remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, for example, Vernillo v. France , 20 February 1991, § 27, Series A no. 198; and Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV). 25.     The Court has already found in the context of other cases (see Ahlskog v. Finland (dec.), no. 5238/07, 9 November 2010; and S.V. v. Finland (dec.), no. 66399/09, 24 January 2012) that a complaint under the Act on Compensation for Excessive Duration of Judicial Proceedings is an effective remedy in the sense that it is capable of providing adequate redress for excessive length of proceedings in civil and criminal cases, provided that the impugned proceedings are still pending. 26.     In this connection, the Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). The Court has on many occasions held, in cases concerning the length of proceedings, and which had not been declared admissible by the Court, that applicants should be required to have recourse to domestic remedies notwithstanding that those remedies have been enacted after their applications have been filed with the Court (see, for example, Giacometti and Others v. Italy (dec.), no.   34939/97, ECHR 2001 ‑ XII; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002 ‑ VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 ‑ IX; Charzyński v. Poland (dec.), no. 15212/03, § 40, ECHR 2005 ‑ V; Ahlskog v. Finland (dec.), cited above; and S.V. v. Finland (dec.), cited above). 27.     The Court notes that the pre-trial investigation conducted by the police and the subsequent criminal proceedings, in which the applicant was a complainant, were on-going in the present case between August 2009 and December 2012. The Act on Compensation for Excessive Duration of Judicial Proceedings entered into force on 1 January 2010, providing for a party to judicial proceedings concerning a civil or criminal matter a right to receive compensation from State funds whenever the proceedings have been excessively long. In June 2011 the Supreme Court, by its interpretation in the precedent case KKO:2011:38, extended this right to cover also pre-trial investigation even when the investigation did not lead to charges being brought or to judicial proceedings. 28.     The Court notes that it has already found the Act on Compensation for Excessive Duration of Judicial Proceedings to be an effective remedy. Similarly, its extension by the Supreme Court’s interpretation to cover pre ‑ trial investigation has also been regarded as effective (see Nikkinen v. Finland (dec.), no. 33290/11, § 24, 28 January 2014). The Court notes that, in the context of the Nikkinen case, the Government provided several examples of the effectiveness of that remedy. They also provided examples where, even before the Supreme Court’s precedent case, the National Police Board had compensated delays which had taken place during pre-trial investigation. Moreover, the Supreme Court’s interpretation has subsequently been incorporated in the Act itself and this amendment has been in force since 1 June 2013. 29.     In the present case, the Court notes that the applicant claimed, during the District Court proceedings, compensation for the excessive duration of the proceedings in accordance with the Act on Compensation for Excessive Duration of Judicial Proceedings, indicating that his claim concerned a period starting from September 2011 until the delivery of the judgment. The applicant has not explained why he did not seek compensation covering the whole duration of the criminal proceedings or, relying on the Supreme Court precedent case KKO:2011:38, including even the relevant duration of the pre-trial investigation. Since there clearly existed effective remedies for excessive length when the applicant’s case was still pending before the competent authorities and courts, there would have been no procedural obstacles to examining the applicant’s compensation claim for excessive length for the whole duration of the proceedings, had the applicant only made such a claim during these proceedings. 30.     Taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, the Court finds that it was open to the applicant to apply, at any time, for compensation on the basis of the Act on Compensation for Excessive Duration of Judicial Proceedings covering the entire length of the criminal proceedings, and additionally, after 8   June   2011, also covering the relevant duration of the pre-trial investigation on the basis of the Supreme Court’s precedent. 31.     Accordingly, the application must be rejected for non ‑ exhaustion of domestic remedies and declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Done in English and notified in writing on 19 February 2015.   Fatoş Aracı   George Nicolaou Deputy Registrar   President