CASE OF RANINEN v. FINLAND
Preliminary objection rejected (non-exhaustion);Violation of Art. 5-1;Not necessary to examine Art. 5-2;No violation of Art. 3;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
R. Pekkanen
7. The applicant is a Finnish national who was born in 1967 and resides in Helsinki. In 1986 he was called up for military service but his duty to report for service was suspended until 20 March 1992 because of his studies. Prior to this date he declared in writing to the army that he objected to performing any kind of military or substitute civilian service. On 7 April 1992 he presented himself at the Army Headquarters (pääesikunta, huvudstaben) and submitted a petition against military service. After having reiterated his petition the following day he was arrested on suspicion of having avoided service. He was eventually brought to the barracks of the Pori Brigade (Porin Prikaati – “Pori barracks”) at Säkylä, where he had been due to report on 20 March 1992. On his renewed objection to carrying out military duties his arrest was prolonged on 9 April. 8. On 11 April 1992 the District Court (kihlakunnanoikeus, häradsrätten) of Eura ordered the applicant’s detention on remand in the County Prison of Turku. On 24 April the District Court convicted and sentenced him to imprisonment (suspended) for having avoided military service from 20 March to 8 April and for having committed an offence in service on 9 April (Chapter 45, Articles 4 and 15, of the 1889 Penal Code (rikoslaki, strafflag 39/1889 as amended by Act no. 792/89)). The above offences applied to conscripts like the applicant who refused to perform either military or substitute civilian service. Punishment imposed for such refusal did not relieve the conscript from his duty to serve, which applied until the end of the year of his thirtieth birthday (section 23, subsection 2 (3) and section 15 of the 1950 Military Service Act). 9. Immediately upon his release on 24 April 1992, military staff brought the applicant back to the Pori barracks. Subsequently, as he persisted in objecting to military service, he was re-arrested and placed in detention on remand. On 12 May the District Court convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date. 10. On his release the same day, military personnel brought the applicant back to the Pori barracks. As he continued to object to carrying out military service he was re-arrested and detained on remand. On 29 May 1992 the District Court convicted the applicant of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date. 11. After his release on the same date he was again brought back to the Pori barracks by the military police, where he was re-arrested as he persisted in objecting to military service. 12. On 2 June 1992 the applicant started to serve his sentences at the County Prison. When released on parole on 9 June he was again taken to the Pori barracks by the military police, but since he continued to refuse military service he was re-arrested and placed in detention on remand. 13. On 18 June the District Court convicted the applicant of two offences in service and sentenced him to further imprisonment. The sentence was to be served at a later date. The District Court in addition revoked the order to release the applicant on parole. 14. After the court hearing on 18 June 1992, the applicant was, as had occurred on previous occasions, taken back to the County Prison before being released. In the prisoners’ check-out room, a military police squad consisting of conscripts and headed by R., a corporal, waited for the applicant. In the prison courtyard he was handcuffed and informed of his arrest. He was subsequently taken to the military police vehicle outside the prison gate. Members of his support group, who had been waiting for him outside the gate, were photographing and videotaping the incident. He was then taken back to the Pori barracks at Säkylä, situated 100–150 kilometres from Turku, a journey which normally takes approximately two hours by car. Following his arrival at the Pori barracks, the applicant was taken to the military hospital at the compound. He was released from his handcuffs in the hospital’s entry hall. 15. According to the applicant, the measures taken by the military police had all been against his will. In the Government’s submission, he had consented to being transported to the military hospital. 16. The applicant did not undergo any medical examination at the military hospital but was subjected to further questioning by army personnel on 19 June 1992, during which he renewed his objection to military service. As a result he was re-arrested at 8.05 a.m. on the same date. 17. On 22 June 1992 the District Court again ordered his detention on remand in the County Prison. On 26 June he started serving the aggregated prison sentence imposed by the District Court on 18 June (see paragraph 13 above). On 29 June the applicant was convicted of an offence committed in service on 19 June 1992 and sentenced to further imprisonment. In its judgment the District Court stated that he had been deprived of his liberty as from 19 June. 18. On 20 August 1992 the applicant was released from prison on parole. As he continued to object to military service he was twice detained on remand, in August and September, and was convicted of further offences in service and sentenced to further imprisonment. On 5 October 1992 the applicant was discharged from his military service for one year. 19. On 16 February 1993 the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman; “the Ombudsman”), complaining in particular about the deprivation of his liberty from 18 to 19 June 1992 and the related handcuffing. He emphasised that at no moment had he attempted to escape from the military police or otherwise shown any intention of doing so. He had also been handcuffed on 11 April and 2 June 1992 while being transported to the County Prison after the District Court’s hearings. In his petition the applicant also submitted that, on his arrival at the Brigade on 18 June 1992, R. had asked him whether he would agree to go to the military hospital. The applicant had then restated his objection to performing any kind of service but he had not consented to going to the hospital, as was shown by the fact that he had been handcuffed until his arrival there. At any rate, he had not acted in a way which could lead anyone to believe that he had wished to receive hospital care. 20. Heard as a suspect at the Ombudsman’s request, R. stated that he had been instructed by the Legal Officer of the Pori barracks to bring the applicant back to the compound. After the applicant had been released in the prison courtyard, R. had ordered the military police to apprehend him. According to the training provided to members of military police squads, a person who was to be arrested was to be informed thereof and was also to be handcuffed. On the applicant’s return to the Pori barracks, R. had been instructed by the Duty Officer to ask the applicant whether he would agree to take up his military service. As he objected he had, with his own consent, been brought to the military hospital. As far as R. could remember, the applicant had been released from his manacles in the hospital yard. 21. The army authority in the Pori Brigade told the Ombudsman that the purpose of the applicant’s apprehension had been to ensure that he would remain in the hands of the military authorities, given that he had been ordered to take up his service at that compound. The military police had not been given any instructions concerning his transportation in handcuffs. Nor did the situation as a whole seem to have required such a measure, considering that his arrest had not been ordered and, as on previous occasions, he was only to be returned to the Pori barracks. In view of his repeated convictions for military offences, R. had nevertheless considered that the applicant’s handcuffing was necessary in order to ensure his return to the Pori barracks. 22. The Army Headquarters made the following observations to the Ombudsman. The applicant’s arrest had taken place immediately on his release by the prison authorities. There was no evidence at that time that he continued to object to performing military service or to returning to his military compound with the military police. The measures ordered by R. appeared to have been based on the applicant’s earlier repeated objections to performing any kind of service and the likelihood that this would continue. Moreover, his support group had been disturbing R. during the incident. The Army Headquarters nevertheless conceded that, on the basis of the evidence available, there had been no acceptable grounds for arresting the applicant, which measure had stemmed from the fact that R. had made an incorrect assessment of the situation in combination with the surrounding circumstances. Nor had there been any justification for handcuffing the applicant. According to the relevant permanent instructions, manacles could be used temporarily in order to calm down a person behaving violently who was to remain in the hands of the authorities or if there was a specific reason for suspecting that he would escape. Although the applicant had, on several occasions, committed punishable acts and his support group had attended his release from the County Prison, it had not been likely that he would escape on that occasion. 23. In his decision of 20 May 1994 the Ombudsman noted that the military authorities had had no reason to fear that the applicant would attempt to escape. On previous occasions the latter had in fact presented himself voluntarily to them. The Ombudsman considered that the applicant’s arrest on 18 June 1992 had lacked a legal basis since, prior to the measure, he had not been asked whether he would persist in his refusal to perform military or substitute service. The Ombudsman furthermore stated: “There were no objectively justifiable grounds for putting Raninen in handcuffs. Apparently R. proceeded in this situation as he had been trained to do. When evaluating the actions of R., one must take into consideration his inexperience and the rather general nature of the directions which he had received from his brigade. R. himself believed that he acted in accordance with orders. A more experienced military person should have been assigned to fetch Raninen from the County Prison. It is not even claimed that R.’s behaviour was inappropriate in any other respect. In my opinion, and taking into consideration the circumstances, this action does not call for measures to be taken against R. by the Ombudsman.” In addition, he urged the Army Headquarters and the Pori barracks’ Commander to see to it that in both the training and activities of the military police a clear distinction was made between situations arising in times of peace and of war. The Ombudsman did not order that criminal charges be brought. 24. On 20 February 1995 the District Court (käräjäoikeus, tingsrätten) of Kokemäki convicted the applicant of refusal to carry out military service under section 39 of the 1950 Military Service Act (asevelvollisuuslaki, värnpliktslag 452/50, as amended with effect from 1 June 1994). This provision authorised the punishment of a conscript who categorically objected to performing military service, who did not opt for substitute civilian service and whose behaviour would not change as a result of punishment imposed under Chapter 45 of the Penal Code. The District Court sentenced him to 194 days’ imprisonment. Since he had already served 212 days of his previous sentences, this was considered sufficient. 25. According to the Military Discipline Act 1983 (sotilaskurinpitolaki, militär disciplinlag 331/83), a person caught committing a military offence or suspected on likely grounds of having committed such an offence may be arrested provided this is necessary in order to maintain or restore discipline, order or safety (section 16). 26. According to the 1889 Penal Code (rikoslaki, strafflag 39/1889), a soldier carrying out police duties is entitled, if he encounters resistance, to use the necessary force justified by the circumstances (Chapter 3, section 8a, as added by Act no. 321/83). 27. According to the 1990 Educational Guide intended for the members of the military police force, a person who is to be transported shall be handcuffed. Its preface states that it is principally intended for use in wartime or when there is a threat of war. It underlines that in peacetime the military police shall not use more violence than the situation calls for when, for instance, transporting an arrested person. 28. Article 93 §§ 2 and 3 of the Constitution (Suomen hallitusmuoto, Regeringsform för Finland 94/19) provides: “Anyone whose rights have been infringed or who has suffered damage as a result of an illegal act or negligence by a civil servant, is entitled to claim that the civil servant be punished and ordered to pay compensation for damages or to demand that he or she be prosecuted in accordance with the rules provided for by law. Whether and to what extent the State is liable to pay damages caused by civil servants, is to be governed by specific provisions.” 29. A civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (Chapter 40, Articles 10 and 11 of the Penal Code). Article 12 of Chapter 40 provides that the failure to observe military duties may also be considered under the particular offences laid down in Chapter 45. According to Article 15 of Chapter 45, a member of the armed forces who, by intent or neglect or negligence, fails to comply with the relevant military rules and regulations is liable to disciplinary sanctions or to imprisonment of up to one year. Specific provisions on disciplinary measures are contained in the Military Discipline Act 1983 (sotilaskurinpitolaki, militär disciplinlag 25.3.1983/331). 30. If the Parliamentary Ombudsman receives a petition against a public official or authority concerning a matter falling within his area of competence, he or she is to carry out an investigation. If the Ombudsman suspects that the person or authority concerned has committed an unlawful act or a fault calling for his intervention, he or she must inform and hear that person or authority. If the matter cannot rest by the Ombudsman expressing criticism, he or she must prosecute, or have prosecuted, the person who is suspected of being guilty of the unlawful conduct or order that disciplinary proceedings be instituted against the latter (Rule 7 of the Parliament’s Instruction to the Parliamentary Ombudsman, Eduskunnan oikeusasiamiehen johtosääntö, Instruktion för riksdagens justitieombudsman 10.1.1920/2). 31. A person who has been deprived of his or her liberty for twenty-four hours or more may claim compensation from the State under section 1 (4) of the 1974 Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons (laki 422/74 syyttömästi vangitulle tai tuomitulle valtion varoista vapauden menetyksen johdosta maksettavasta korvauksesta, lag 422/74 om ersättning av statens medel som till följd av frihetsberövande skall betalas till oskyldigt häktad eller dömd, hereinafter referred to as “the Compensation for Deprivation of Liberty Act”). 32. Under the Damage Compensation Act 1974 (vahingonkorvauslaki, skadeståndslag 412/74) proceedings may also be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters 3 and 4). In a decision of 31 October 1985, Turku Court of Appeal ordered the State to pay compensation under the Damage Compensation Act 1974 to a person who, after causing disturbance at the emergency unit of a hospital, had been arrested and left by the police at a forest road nine kilometres from the town centre. Although it had been lawful to arrest him, the Court of Appeal considered that the measure had been carried out in a manner which constituted a breach of the police officers’ professional duties and which had caused suffering deserving of compensation to the person concerned. In addition it ordered the police officers to pay fines.