NIEMINEN v. FINLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Kalevi Ensio Nieminen, is a Finnish national who was born in 1952 and lives in Nokia. He was represented before the Court by Mr Jaakko Tuutti, 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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 21 July 2009, in his own apartment, the applicant stabbed another person with a knife. The victim called the police. When the police patrol arrived, they found a person with a deep, bleeding wound in front of the applicant’s home who told them that he had been stabbed in the applicant’s home by the applicant. As it was not known whether other persons were in danger, the police officers entered the applicant’s home in order to prevent any possible further act or event which might seriously threaten another person’s life, personal liberty or health. In the apartment they found nobody but the applicant. He was severely intoxicated, a breathalyser showed a result of 4.00 per mill, and he was not able to give a statement. He was taken to the local police station. The police officers found and seized a knife with a 17 cm blade covered in blood. 5. On 22 July 2009 the applicant was questioned on suspicion of aggravated assault (törkeä pahoinpitely, grov misshandel). He was released on the same day. 6. On 1 October 2009 the applicant was charged with aggravated assault. 7. On 26 November 2009 the Tampere District Court (käräjäoikeus, tingsrätten) dismissed all charges against the applicant. It found that the applicant had not intentionally hurt the other person and that the latter’s injury could have been caused accidentally as both the applicant and the victim had been severely intoxicated. No motive for the act could be established. The applicant and the victim were still good friends and had even come to the oral hearing together. 8. No appeal was made against this judgment and it thus became final. 9. According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act. 10. Section 16 of the Police Act (poliisilaki, polislagen, Act no. 493/1995) provides the following: “On the order of a commanding police officer, and in urgent cases even without such an order, police officers have the right to enter a building, other domestic premises or a vehicle if there is good reason to assume that an act or event causing a serious threat to life, personal liberty or health, or notable damage to property or the environment is taking place or about to take place. A further precondition is that the measure is essential to prevent danger or to search and take possession of explosives, weapons or other dangerous substances or objects.” 11. Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. 12. In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in criminal proceedings, that it may have been removed from someone as a result of a criminal offence or that the court may order its forfeiture (Chapter 4, section 1, of the Coercive Measures Act). 13. A civil servant having the power to arrest a person may decide to conduct a search at a person’s home. A police officer may conduct a search even without a warrant if it is intended, inter alia, to locate a person to be apprehended, arrested or detained or for seizure of an object that has been used immediately before in a crime. A police officer may conduct a search without a warrant also on other occasions if the matter cannot wait (Chapter 5, section 3). 14. At the time of the events there was no access to a court as concerned a search but only in respect of a seizure (Chapter 4, section 16, subsection 1). 15. According to Chapter 21, section 6, subsection 1, of the Penal Code (rikoslaki, strafflagen, Act no. 578/1995 as modified by Act no. 654/2001), a person can be sentenced for aggravated assault to imprisonment for a minimum term of one year and a maximum of ten years.