EKLUND v. FINLAND
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano
1. The applicant, Mr Veikko Eklund, is a Finnish national who was born in 1947 and lives in Helsinki. He was represented before the Court by Mr Matti Jousinen, a lawyer practising in Helsinki. 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. Apparently in 1997 the applicant was subject to an enforcement inquiry (ulosottoselvitys, utsökningsutredning) in which he had to provide information on his assets, debts and income. Another enforcement inquiry was carried out on 9 February 2004. 5. On 10 March 2008 the applicant was charged on two counts of making a false statement in court (perätön lausuma tuomioistuimessa, osann utsaga inför domstol) as he had, inter alia, given false information in 2006 and 2007 before the domestic courts in a matter in which he was heard as a witness. 6. On 14 May 2008 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a suspended prison sentence of five months. 7. The applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). 8. On 18 June 2010 the Helsinki Appeal Court upheld the District Court judgment. Justice P.V. was part of the composition of the Appeal Court. The Appeal Court judgment became final as no appeal was lodged. 9. On 17 January 2011 charges were pressed against the applicant who was accused, inter alia, of aggravated debtor’s fraud (törkeä velallisen petos, grovt gäldenärsbedrägeri) for not having declared, during the enforcement inquiry on 9 February 2004, the real estate which was used as his principal residence but which was officially owned by a limited liability company, all of whose shares were owned by the applicant’s children. 10. On 11 January 2012 the District Court convicted the applicant of, inter alia, aggravated debtor’s fraud for failing to declare the above real estate on 9 February 2004 and sentenced him to a total of two years and ten months in prison. The court found that the applicant had been obliged to declare the property concerned and since he had not done so during the inquiry on 9 February 2004, he was guilty of concealing his property. 11. By letter dated 9 February 2012 the applicant appealed to the Appeal Court, requesting that the District Court judgment be quashed. He alleged in particular that the District Court had not explained why, on 9 February 2004 during the enforcement inquiry, he should have declared the real estate as his personal property when it was owned by a limited liability company. The company had obtained legal confirmation of ownership (lainhuuto, lagfart) and had been officially entered in the land register as the owner of the real estate. The property rights of the company or its shareholders were never even put into question. The applicant claimed that he had given truthful information on 9 February 2004. 12. On 11 September 2012 the oral hearing started before the Appeal Court and the names of the justices sitting in the composition became known to the parties. The oral hearing continued on 12, 14, 24 and 25 September 2012. 13. On 6 November 2012 the Appeal Court upheld the District Court judgment as far as the count of aggravated debtor’s fraud was concerned. It agreed with the lower instance that during the enforcement inquiry on 9 February 2004 the applicant had been obliged to declare the property concerned and since he had not done so the conviction should be upheld. Concerning any possible issue of self-incrimination, the Appeal Court found it established that on 9 February 2004, during the enforcement inquiry, the applicant had not been charged with any crime. He had not therefore had any right to remain silent on 9 February 2004 but should have declared the real estate. This judgment was delivered by the Appeal Court composition which included Justice P.V. 14. By letter dated 18 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He also referred to the prohibition on self-incrimination and claimed that, when making his statement on 9 February 2004, it could not be ruled out that he could have been accused of debtor’s fraud, had he given any information. Moreover, he claimed that Justice P.V. had been biased as he had been part of the Appeal Court composition also on 18 June 2010 when the applicant had been convicted of making a false statement in court. 15. On 11 March 2013 the Supreme Court refused the applicant leave to appeal. 16. By letter dated 20 August 2013 the applicant lodged an extraordinary appeal with the Supreme Court, requesting that the Appeal Court judgment of 6 November 2012 be annulled and the proceedings reopened due to the fact that the Appeal Court had been biased and the prohibition of selfincrimination had been violated. 17. On 7 May 2014 the Supreme Court refused the applicant’s request for annulment and reopening. 18. At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act (ulosottolaki, utsökningslagen, Act no. 37/1895, as amended by Act no. 679/2003). These provisions stated that, for the purpose of obtaining the necessary information for enforcement, the Bailiff could carry out an enforcement inquiry. For the enforcement inquiry, the debtor had to provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He also had to give information about the whereabouts of any object or document which, by a judgment, he had been ordered to give to another person or which by law had to be given to the enforcement authority. 19. In the enforcement inquiry, the debtor had to provide such information as was necessary to establish whether property disposed of and related transactions could be recovered for the purposes of enforcement. Where requested by the Bailiff, the debtor in the enforcement inquiry had to prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor. 20. If the debtor or his or her representative failed to comply with their obligations, the Bailiff could order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. Payment of the administrative fine was ordered if the obligations had not been fulfilled or had been contravened without a valid reason. 21. As from 1 March 2004 Chapter 3, section 73, of the Enforcement Act contained also a provision prohibiting the Bailiff from transmitting incriminating information to other authorities. This provision read as follows: “The Bailiff must not disclose information which has to a substantial extent been received from: ... 2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges for the debtor; ...” 22. The Enforcement Act was replaced by the Code of Enforcement (ulosottokaari, utsökningsbalken, Act no. 705/2007) with effect from 1 January 2008. The contents of the relevant provisions essentially remained the same. 23. Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code (rikoslaki, strafflagen, Act no. 39/1889, as amended by Act no. 769/1990).