CASE OF T.K. AND S.E. v. FINLAND
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicants were born in 1963 and 1951 respectively. They were shareholders in two limited liability companies. It appears that at least S.E. was also in a management position in those companies. Both companies were in the process of being wound up from 1991. 8. W., a lawyer working for the bank which was the main creditor of the companies, was appointed as the official receiver to control the assets of the companies. Having received a special auditor’s reports about the companies W., on 21 October 1992, requested the police to investigate whether offences had been committed in the companies before they went into liquidation. The police interview of the official receiver began on 9 December 1992 and continued in January 1993. S.E. was questioned by the police for the first time on 25 May 1993. That day he was also arrested and a large number of documents were seized from both the applicants. T.K. was questioned by the police on 27 May 1993. 9. On 12 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) revoked the seizure of the documents, as requested by S.E., as the time-limit of four months had passed since they had been seized and no charges had been brought against the applicants during that time. The decision became a precedent (KKO 1994:83). 10. The applicants were questioned several times in the course of the investigations during the period from May 1993 until 1995. It appears that the police investigations concerning the two companies came to an end in November 1993 and April or May 1995 respectively. 11. S.E. petitioned the Deputy Parliamentary Ombudsman, who in her decision of 28 February 1997 took the view that the pre-trial investigations should have been speedier. 12. The applicants were charged with offences as dishonest debtors. Writs of summons were served upon S.E. on 1 November 1994 and on 11 May 1995 and upon T.K. on 8 May 1995. Three oral hearings were held in the Espoo District Court (käräjäoikeus, tingsrätten) on 16 February 1995, 11 May 1995 and 29 June 1995. S.E. was absent from the first hearing due to a lawful impediment. At the second hearing the complainants requested a deferral which was granted. 13. On 29 June 1995 the District Court ruled inadmissible the charges brought against the applicants, without considering their merits, on the grounds of their being in breach of procedural requirements. The District Court found that the complainants, i.e. the meeting of the debtors, had not requested that charges be brought against the applicants. The mere fact that the official receiver had made a request to that effect was not sufficient, as the practice at the time of the alleged offences required that the decision should be made by the meeting of the debtors. The District Court noted, however, that chapter 39, section 9 (3) of the Criminal Code (rikoslaki, strafflagen), which had entered into force after the commission of the alleged offences, allowed for the official receiver to request a prosecution. The District Court concluded that although the provision was of a procedural nature and as such applicable to offences committed prior to its entry into force, applying the provision in this case would lead to an unfavourable outcome for the applicants. Thus, the District Court decided not to apply the new provision, and accordingly, not to consider the merits of the charges. 14. In July 1995 the public prosecutor, the complainants and S.E. appealed. On 28 November 1996 the Helsinki Court of Appeal (hovioikeus, hovrätten) found that the official receiver had been entitled to request criminal proceedings against the applicants under chapter 39, section 9 (3) of the Criminal Code, as the application of that provision in the instant case neither affected the period of limitation nor subjected the applicants to a stricter criminal liability. The Court of Appeal revoked the District Court’s decision and remitted the case. 15. On 27 January 1997 the applicants requested leave to appeal. On 7 May 1997 the Supreme Court granted them leave to appeal and invited the observations of the other parties. On 29 October 1997 the Supreme Court rejected the applicants’ appeal for substantially the same reasons as those given by the Court of Appeal. The decision became a precedent (KKO 1997:171). 16. On 3 November 1997 the applicants lodged an application for an annulment. Further, they requested on 9 December 1997 that the Supreme Court postpone the consideration of the annulment until the European Court of Human Rights had given judgment and as the Supreme Court on 5 April 2001 had informed them that the case would be decided shortly, they requested again that the application be stayed. However, on 15 November 2001 they withdrew the application for an annulment. 17. Meanwhile, on 11 February 1998 the District Court informed the parties that the case would be restored to its case-list. It was, however, adjourned several times as there were settlement negotiations going on between the applicants and the complainants. The time-limit for submission of observations was extended until 31 August 1998 upon request of the public prosecutor. 18. On 21 October 1998 a contract was signed between the complainants and the applicants, agreeing that they had no claims, either civil or criminal, against each other on the basis of the events mentioned above. According to the Government, the parties reached an agreement on compensation, whereas the applicants denied that the agreement concerned any form of compensation. 19. On 14 January 1999 the public prosecutor informed the District Court that he wanted to withdraw all the charges against the applicants, finding that his right to bring charges had ceased to exist as the complainants had withdrawn their claims. 20. However, at the oral hearing held on 8 February 1999 in the District Court S.E. requested notwithstanding the withdrawal that it be examined whether the complainants’ prosecution request had been specific enough for charges to be brought and whether the period of limitation on the right to bring charges had become time-barred. The public prosecutor noted that at least three witnesses had died since the police investigations, and that he might have withdrawn the charges in any event as the proceedings had already lasted an unreasonably long time. It was announced by T.K. and the complainants that the case had been settled as far as they were concerned. The District Court found on the same day that the public prosecutor could not withdraw the charges if there was an objection and that S.E. had the right to a decision in the matter. The case was adjourned until 15 March 1999 as far as S.E. was concerned. The charges against T.K. were removed from the docket and the decision was not appealed against. 21. On 15 March 1999 the District Court, having held an oral hearing, rejected one of the charges as time-barred and ruled the rest inadmissible, without considering their merits. In so far as the District Court refused to consider the merits, it found that the complainants had not particularised their allegations when reporting the alleged offences to the police in October 1992 or during the questioning of the official receiver in January 1993, and that the time-limit for requesting prosecution, as stipulated by the Decree Implementing the Criminal Code (rikoslain voimaanpanosta annettu asetus, förordningen om införande av strafflagen), had thus been exceeded. 22. The public prosecutor and S.E. appealed against the District Court’s decision not to consider part of the charges. The case became pending before the Court of Appeal in April 1999. On 15 August 2000 the Court of Appeal, noting that S.E. had a right to have the question of guilt examined and as part of that issue also whether the prosecution procedure had been in accordance with the law, found that the complainants had particularised their allegations sufficiently within the period of limitation, and therefore revoked the District Court’s decision to rule the charges inadmissible. Instead, the Court of Appeal removed the charges from the docket as the applicants and the complainants had reached a settlement. Chapter 39, section 2 of the Criminal Code, as in force until the end of 1990, provided that a debtor could not be convicted if he had satisfied his creditor. 23. On 16 October 2000 S.E. applied to the Supreme Court for leave to appeal. The case was still pending before the Supreme Court when the European Court of Human Rights decided to give notice of the application to the respondent State. On 21 January 2002 the Supreme Court refused S.E. leave to appeal.