DANKER v. FINLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Anders Danker, is a Finnish national who was born in 1961 and lives in Lidingö, Sweden. He was represented before the Court by Mr J. Hakanen, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows. The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud. On 10 September 1994 the applicant was questioned by the police as a suspect. The pre-trial investigation was completed on 14 July 1995. The applicant was subsequently charged with economic crime allegedly committed in 1991 and 1992. On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld a co-defendant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court. Meanwhile, a second hearing was held on 12 June 1996. At the third hearing on 27 August 1996, the District Court upheld a co-defendant’s claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision. The applicant was summoned to appear before the District Court for the first time at the above-mentioned third hearing held on 27 August 1996. The public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996. On 21 January 1998 the District Court upheld a co-defendant’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision. Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue. On 18 May 2000 the District Court issued a separate decision dismissing a co-defendant’s request that the charges against him should be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed a renewed request. On 12 January 2001 a co-defendant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001. There were 28 days of hearings in the District Court up to the end of 2000, held at approximately two to five-month intervals. On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of a co-defendant to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, he would be granted immunity from further prosecution in Finland for offences he had previously committed. On 14 August 2001 the District Court found that the criminal case against the co-defendant was barred on the basis of his immunity. On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue his prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland. The co-defendant challenged the lawfulness of his continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003. The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill. Meanwhile, on 25 February and 20 August 2003 respectively, the District Court dismissed the further requests of a co-defendant and the applicant to have the charges against them ruled inadmissible on account of the length of the proceedings. The applicant’s procedural complaint was dismissed by the appellate court on 3 December 2003. On 12 October 2004 the Supreme Court refused leave to appeal. On 9 February 2004 the District Court also dismissed the renewed request of the applicant, among others, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal. On 31 August 2004 the District Court dismissed a further request that the charges be declared inadmissible owing to the length of the proceedings. During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003. There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004. On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need to allocate adequate financial resources to both the District Court and the authorities involved in the case. On 21 March 2006 the District Court gave its judgment. It dismissed as time-barred the charge concerning aiding and abetting debtor dishonesty but convicted the applicant of an accounting offence. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court noted that it had dismissed one of the charges as time-barred. As the court was not allowed to pass judgment on the time-barred charge, redress for the length of the proceedings had to be given in some other way. Accordingly, the applicant’s sentence should be mitigated. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it was reducing the applicant’s sentence by half owing to the breach of the “reasonable time” requirement. It sentenced him to a suspended term of sixty days’ imprisonment. The applicant appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007. On 22 October 2007 the Court of Appeal gave its judgment. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court found that the applicant had not contributed to the length of the proceedings. It stated that it was reducing the applicant’s sentence by two-thirds owing to the lengthy proceedings. The Court of Appeal agreed with the District Court that the standard sentence would be four months’ imprisonment and noted that the lower court had mitigated that sentence by half, that is, sixty days. The Court of Appeal further noted that it was not possible to mitigate the applicant’s sentence to a fine, having regard to the harmful and dangerous nature of the offence, the motives and the guilt displayed by the offence. Applying Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 and with effect from 1 January 2004; rikoslaki, strafflagen), the Court of Appeal, owing to the breach of the “reasonable time” requirement, sentenced him to a suspended term of forty days’ imprisonment. The applicant requested leave to appeal. On 22 May 2008 the Supreme Court refused leave to appeal. Chapter 6, article 7, point 3, of the Penal Code reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” Chapter 6, article 12, point 4, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004) reads: “The court may waive the sentence if ... 4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services; ...” In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaration of inadmissibility might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. On 1 February 2006 the Supreme Court gave a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence.