CASE OF SORVISTO v. FINLAND
Remainder inadmissible;Violations of Art. 6-1;Violations of Art. 13;Violation of Art. 8;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1959 and lives in Espoo. 6. On 2 February 1995 the applicant, a member of the board of a wound-up company (“V.”), was detained on suspicion of involvement in offences of aggravated fraud, debtor dishonesty and false book-keeping, allegedly committed in 1991 and 1992, before the winding up of V. 7. The criminal proceedings against his four co-defendants began on 18 April 1996 before the Salo District Court (käräjäoikeus, tingsrätten). The charges were served on the applicant on 6 May 1996 and 16 December 1996, respectively, and the trial against him apparently began on 19 March 1997. 8. On 21 March 2006 the District Court gave its judgment. It convicted the applicant of aggravated fraud. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it would reduce the applicant’s sentence by half, owing to the breach of the “reasonable time” requirement. It sentenced the applicant to 18 months’ imprisonment. 9. The applicant and his co-defendants appealed to the Turku Appeal Court (hovioikeus, hovrätten). 10. One of the applicant’s co-defendants requested that the Appeal Court terminate the proceedings immediately in his respect and dismiss all charges against him. He based his request on the European Court’s judgment of 9 January 2007 in the case Uoti v. Finland (application no. 61222/00), in which the Court found a violation of Article 6 § 1 of the Convention due to the excessive length of proceedings. 11. On 16 January 2007 the Appeal Court rejected this request. The court found that the European Court had not requested in its judgment that the proceedings be terminated. 12. On 22 October 2007 the Appeal Court gave its judgment. It found that, taking into account the applicant’s previous conviction, the applicant should have been sentenced to imprisonment of three years and three months. However, due to the excessive length, this sentence should be mitigated and the redress had to be more significant than that granted by the District Court. The Appeal Court mitigated the applicant’s sentence by two-thirds owing to the breach of the “reasonable time” requirement and sentenced him to 13 months’ imprisonment. 13. The applicant and his co-defendants appealed to the Supreme Court (korkein oikeus, högsta domstolen). 14. On 22 May 2008 the Supreme Court refused leave to appeal. 15. On 29 June 1994 the bankruptcy estate of V. lodged claims for damages against the applicant and three other persons with the Helsinki District Court. 16. The court informed the applicant three times, the first being on 29 January 1996, that the case had been adjourned in anticipation of the outcome of the criminal proceedings pending before the Salo District Court (see above), which was based on the same facts as the civil proceedings. On 7 October 1999 and 2 June 2000 it issued decisions to the same effect. 17. The applicant objected and requested that the civil proceedings be continued. He also requested that the claims be dismissed because the length of the proceedings had already exceeded a reasonable time. On 1 April 2003 the court rejected his request. It stated that the length of the proceedings was due to the need to await the outcome of the pending criminal proceedings, and adjourned the case. 18. The applicant complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 22 June 2005 the Deputy Parliamentary Ombudsman found that the domestic legislation did not provide a possibility for the Finnish courts to dismiss civil claims because of the length of proceedings. The applicable domestic law and practice were unsatisfactory, also in the light of Article 13 of the Convention. However, as the instant case was pending before the domestic court and the European Court, he could not rule on the complaint. 19. On 5 January 2007 the applicant renewed his request to the District Court that the claims be dismissed, arguing that during the pre-trial investigation the plaintiff’s (V.’s) lawyer had seen and read legally privileged documents which could not be used as evidence against him. He also maintained that the proceedings had exceeded a reasonable time. 20. The plaintiff objected. It gave an assurance that it would not use any privileged information in the forthcoming trial. It further stated that the appellate court would deliver its judgment in the criminal proceedings in August or September 2007. If the first-instance court’s judgment were upheld, there would be no grounds for continuing the civil proceedings against the applicant. 21. On 1 March 2007 the District Court rejected the applicant’s request. It noted the plaintiff’s submission that no prohibited privileged material would be used in the trial. Furthermore, the criminal proceedings were the main proceedings and consequently, in order to avoid unnecessary trial costs, the civil proceedings should only be resumed once the criminal proceedings had come to an end. 22. By a letter of 11 June 2008, the plaintiff in the civil proceedings withdrew its action. The case was expected to be pending for a few weeks more as the District Court needed to decide on the costs and expenses. 23. On 17 May 1999 the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen, “the police”) conducted a search of a storage facility, situated in Helsinki and rented by Mr O. The search was based on the suspicion that the applicant had not declared all his assets in debt recovery proceedings. The police seized a large number of documents belonging to some private persons, including, inter alia, correspondence between the applicant and his Spanish lawyer, C. 24. The applicant requested the Vantaa District Court to annul the seizure on grounds of its unlawfulness, since the documents seized contained privileged information between him and his lawyer. On 24 March 1999 the court upheld the seizure. It found that the material seized contained documents which were protected by legal professional privilege under Chapter 17, Article 23 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Consequently, such documents could not be seized from the applicant’s or his lawyer’s possession. The court, however, went on to find that in the instant case the seized documents were not “in the possession” of the applicant or his lawyer within the meaning of Chapter 4, section 2, subsection 2, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen) as they had been stored in a storage facility together with other persons’ belongings. The seizure had therefore been lawful. 25. The applicant appealed to the Helsinki Appeal Court, claiming that the Coercive Measures Act had been interpreted in a manner that contradicted the Convention, given that he had sole authority over the seized documents. They were thus “in his possession” and had only been stored in the storage facility. 26. On 14 January 2000 the Appeal Court revoked the seizure in so far as it concerned the correspondence between the applicant and C. and ordered the documents to be returned to the applicant. It held that the correspondence had not been in the possession of a third party and was therefore protected by legal professional privilege. In its view, the domestic legislation had to be interpreted in the applicant’s favour. 27. On 24 March 2000 the Supreme Court refused the police leave to appeal. 28. Consequently, the police requested the District Court to prolong the seizure until 17 May 2000. In their view, the correspondence between the applicant and C. was not privileged material which had been drafted for the applicant’s defence in a pending trial but concerned his possessions abroad, thus falling outside legal professional privilege. 29. The District Court disagreed. In its decision of 3 April 2000, it held that the correspondence might have contained legally privileged information. Thus it was, as a whole, subject to a prohibition on seizure. 30. Upon the applicant’s request, the bailiff ordered the police to return the documents. The documents were to be stored in the bailiff’s office until the decision on seizure had acquired legal force. 31. The police appealed to the Appeal Court, maintaining that the seized documents did not concern legally privileged information that the applicant had passed to C. for the purpose of pleading a case before a trial. In addition C. was not, at the time, the applicant’s defence lawyer. 32. On 25 May 2000 the Appeal Court upheld the decision. 33. Having granted interim measures, the Supreme Court granted the police leave to appeal on 8 August 2000. By decision of 9 April 2001 it quashed the Appeal Court’s decision of 25 May 2000, finding that the revocation of the seizure had already acquired legal force on 24 March 2000 when the Supreme Court had refused leave to appeal. On that date the seizure was revoked and the documents were to be returned to the applicant. Consequently, it would not have been possible, even in theory, to prolong the seizure after that date. The court did not address the issue of whether the documents seized concerned legally privileged material. It also declined to examine the police’s request to prolong the time-limit for prosecution as such a request should have been filed with the District Court. 34. On 30 May 2001 the police again seized the same documents on the basis that they could be used as evidence in forthcoming criminal proceedings against the applicant. 35. On 24 July 2001 the police requested the District Court to prolong the time-limit for bringing charges against the applicant and for the seizure of the documents, as they had not been allowed to examine the content of the seized documents due to the pending complaints concerning their allegedly privileged nature. The applicant objected, claiming that the police should not have seized the same documents twice. He further maintained that the material was privileged and could not be seized. In his view, the seizure was in breach of Article 8 of the Convention. 36. The District Court revoked the seizure on 10 August 2001, referring to the Appeal Court’s decision of 14 January 2000 and finding that legal privilege applied to the correspondence. 37. The police appealed to the Appeal Court, renewing their argument that the documents seized did not concern information which the applicant had passed to C. for the purpose of pleading a case before a trial, and which, for that reason, could be covered by legal professional privilege. 38. On 21 May 2002 the Appeal Court upheld the decision, rejecting the police’s appeal. 39. Having granted the police leave to appeal, the Supreme Court quashed the decision by nine votes to two on 5 December 2003. The decision became a precedent (no. KKO 2003:119). The majority found that the main issue in the proceedings was whether counsel’s right not to testify against his client and the consequent prohibition on seizure extended also to material passing between a client and his lawyer if that material did not relate to a pending or forthcoming trial. They found the domestic legislation in this respect somewhat open to interpretation but concluded, having assessed the Court’s case-law, that as the seized documents did not concern information which the applicant had given to his lawyer in order to assist him in a trial, they could have been subject to seizure. Two of the Justices dissented, finding that the seizure had interfered with the applicant’s fundamental rights. However, the applicable domestic legislation was not clear and unambiguous, and therefore it should have been applied with due regard to fundamental rights and the requirements of legal professional privilege. The dissenting Justices interpreted the domestic law to the effect that the correspondence between the applicant and C. was covered by the prohibition on seizure. 40. The documents seized were returned to the police and it appears that the seizure was prolonged a number of times until summer 2005. 41. On 6 July 2006 the criminal proceedings started in the Vantaa District Court. On 23 August 2006 the charges, three counts of aggravated debtor fraud, were served on the applicant. On 25 August 2006 the District Court dismissed the first count as it was already statute-barred. This decision was upheld by the Appeal Court on 19 October 2006 and by the Supreme Court on 24 October 2007. 42. On 23 April 2008 the District Court convicted the applicant on two counts of aggravated debtor fraud and sentenced him to a six-month term of imprisonment. The court found that the pre-trial investigation had been excessively long in the applicant’s case. The applicant would have been sentenced to 18 months’ imprisonment but as he had already been sentenced to imprisonment on 29 November 2006 and on 22 October 2007, his sentence was mitigated by twelve months. 43. The applicant and the public prosecutor appealed to the Appeal Court where the case is apparently still pending. 44. Chapter 6, Article 7, point 3, of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” 45. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, Article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. 46. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, Article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. 47. According to Chapter 5, section 1, of the Coercive Measures Act (Act No. 450/1987, as in force at the relevant time), the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. The search warrant is issued by the police themselves. 48. Chapter 4, section 2, subsection 2, of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2, of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen; Act No. 449/1987), a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 49. Under Chapter 17, Article 23, subsection 1, of the Code of Judicial Procedure, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years’ imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused. 50. Under section 5c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, Article 1 or 2, of the Penal Code, unless the law provides for a more severe punishment on another count. 51. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be entered in the records of investigation. As regards other evidence, any police officer is under an obligation to respect the confidentiality requirement. 52. The Supreme Court issued on 5 December 2003 a precedent on the interpretation of Chapter 17, Article 23, of the Code of Judicial Procedure (KKO 2003:119, no. 3010, votes 9–2). The decision concerned specifically the course of events in the present case. According to the decision of the Supreme Court, the documents seized from the applicant, related to the commission relationship between himself and his Spanish legal counsel, did not contain information entrusted by the applicant to his legal counsel for the pursuit of a case as referred to in Chapter 17, Article 23, subsections 1 and 4, of the Code of Judicial Procedure. Therefore, there was no obstacle to seizing the documents from the applicant. The Supreme Court ruled on the case by nine votes to two, sitting as an enlarged chamber presided by the President of the Court. 53. The Supreme Court reiterated this position in its other precedent case, KKO 2003:137. 54. Recommendation Rec(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”