LONNBERG v. FINLAND
Inadmissible
Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
The applicant, Mr Tino Ari-Pekka Lönnberg, is a Finnish national who was born in 1981 and lives in Tampere. He was represented before the Court by Mr Mikko Lehti, a lawyer practising in Tampere. The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 October 2009 the applicant was running errands with his friends when the police stopped his car. They suspected him of drunken driving and tested him for alcohol and drugs on the spot. The alcohol test was negative, but the drug test was positive for amphetamines and cannabis. The applicant was taken to a laboratory for blood and urine tests as well as for a clinical test. On the same date the applicant was also questioned as a suspect by the police at the police station. A temporary driving ban was imposed and his driver’s licence was confiscated. Subsequently, on 3 November 2009, the laboratory tests showed no trace of drugs in the applicant’s blood or urine. On 4 November 2009 the driving ban was lifted by the police and the applicant’s driver’s licence was returned to him. An appeal against this decision lay to the Administrative Court. On 4 November 2009 the police decided to terminate the pre-trial investigation in the matter. On 22 November 2009 the police concluded that the applicant had not committed any crime. According to section 11 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 450/1987, as amended by Act no. 646/2003), a bodily search including the taking of bodily samples (henkilönkatsastus, kroppsbesiktning) can be made on a person suspected on reasonable grounds of, inter alia, drunken driving or drug abuse. According to section 12 of the Act, the provisions concerning search of premises are mutatis mutandis applied to the bodily search. If the bodily search is thorough, it needs to be conducted in a location intended for that purpose. If the bodily search is conducted by a person other than medical personnel, a witness should be present, if possible. An examination requiring medical expertise can only be conducted by a medical doctor. The bodily search cannot be conducted by a person of the opposite sex to the person searched, unless he or she is a member of the medical personnel. The only exception is the taking of a saliva sample for a DNA-test. Persons of the opposite sex, except the guardian of a minor, may not be present, unless the bodily search concerns taking blood or saliva samples or clinical examination of the state of intoxication. The bodily search may not cause significant inconvenience to the person to be searched. An official with the power of arrest shall decide on a bodily search and giving of bodily samples. However, a police officer may carry out such measures without a warrant in urgent cases. According to section 118, subsection 3, of the Constitution anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be punished and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided for in more detail by an Act. Chapter 40, section 9, subsection 1, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 604/2002), provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for a maximum period of one year. Chapter 40, section 10, of the Penal Code (as modified by Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine. According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, as modified by Act no. 647/2003), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges. Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties.