CASE OF HUHTAMAKI v. FINLAND
Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1960 and lives in Helsinki. 6. On 6 August 1993 a company controlled by Mr A. purchased real estate. In summer 1997 Mr A. transferred the control over the company to another person who, on 24 September 1997, met the applicant for the first time. On 13 October 1997 the applicant sold the real estate, in accordance with this other person’s instructions, on behalf of the company to another company. On 14 October 1997 Mr A. was declared personally bankrupt while he was at the same time charged with dishonesty by a debtor (velallisen epärehellisyys, oredlighet som gäldenär). On 7 November 1997, when the first swearing of the inventory of the bankruptcy estate was held, Mr A. refused to swear the inventory. The inventory did not include the real estate. On 17 December 1997, when the second swearing of the inventory of the bankruptcy estate was held, Mr A. swore the inventory. 7. On 23 June 2005 the public prosecutor brought charges against the applicant for having concealed and obliterated, between 18 December 1997 and 12 February 1998 by, inter alia, drafting contracts and transferring moneys, the true nature and origin of the real estate, in reality owned by Mr A., knowing that this property was obtained by a criminal act. 8. On 16 June 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant in the context of money laundering, inter alia, of an aggravated receiving offence (törkeä kätkemisrikos, grovt häleri) and sentenced him to a term of imprisonment of one year and ten months and to removal from office as a professor of commercial law. The conviction was based on a principal offence committed by Mr A. He was convicted on the same date by the District Court of aggravated debtor’s fraud (törkeä velallisen petos, grovt gäldenärsbedrägeri) and sentenced to imprisonment. The court found that Mr A. had not declared all his assets when swearing the inventory of his personal bankruptcy estate in 1997. 9. By letter dated 29 September 2006 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten) requesting, inter alia, that he be acquitted. 10. On 14 December 2007 the Helsinki Appeal Court upheld the judgment of the District Court, except for the fact that the applicant’s prison sentence was converted into a conditional one. 11. By letter dated 8 February 2008 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen). 12. On 17 April 2009 the Supreme Court granted leave to appeal to Mr A. The applicant was granted leave to appeal only in respect of the removal from office and the obligation to pay costs and expenses to Mr A.’s bankruptcy estate. As to the merits, the court upheld the District Court’s judgment. The court found that the information Mr A. had declined to give in 1997 was not such that it would in all probability have provided a basis for his conviction. Mr A. had thus not had any right to decline to give this information and he was thus guilty of aggravated debtor’s fraud. As concerns the applicant, the court acquitted him of the obligation to pay costs and expenses to Mr A.’s bankruptcy estate. As to his removal from office, the court did not change the earlier judgments. The judgment included several dissenting opinions. 13. Four days later, on 21 April 2009, the Court delivered its judgment in the case Marttinen v. Finland (no. 19235/03, 21 April 2009) in which it found that there had been a violation of the applicant’s right to silence and his right not to incriminate himself guaranteed by Article 6 § 1 of the Convention. In that case the applicant was charged with for having previously given false accounts of his assets at the time when coercion was used to obtain information from him. The circumstances of that case were identical to that of Mr A. with the only exception that Mr Marttinen had been subject to enforcement while Mr A. was subject to personal bankruptcy proceedings. They were both under threat of a similar default fine and even imprisonment if they did not agree to declare all their assets. This information could have been used against them in other pending criminal proceedings. 14. On an unspecified date Mr A. filed an extraordinary appeal with the Supreme Court requesting re-opening of his case on the basis of the Court’s judgment in the Marttinen case. 15. On 12 May 2009 the applicant also filed a re-opening request with the Supreme Court as his conviction was ancillary to that of Mr A. He also requested that the execution of his sentence be stayed as far as the removal from office was concerned. 16. On 22 May 2009 the Supreme Court refused the request to stay the execution due to the fact that the removal from office had taken effect on the date of the judgment, namely, on 17 April 2009, and that there was thus no execution measure to be stayed. 17. On 20 October 2009 the Supreme Court, sitting in plenum, re-opened Mr A.’s case, dismissed all the charges against him and freed him from the sentence imposed. The court found that Mr A. had had a right to remain silent as he could not rule out that the information given could be used against him in criminal proceedings. Mr A had thus been entitled to decline to declare, inter alia, the real estate. 18. On 22 June 2010 the Supreme Court, sitting in plenum, rejected the applicant’s request for re-opening. The court found that even though Mr A. had had a right to remain silent, this did not mean that the applicant’s acts to conceal assets, namely the real estate, from A.’s creditors were justified. The effects of the right not to incriminate oneself were limited only to the person who was asked to submit information. A person could be convicted of a receiving offence even if the perpetrator of the principal offence was freed from criminal liability. The applicant’s right to a fair trial had not been violated as no information received in violation of the right not to incriminate oneself had been used as evidence vis-à-vis the applicant. 19. The referendary and three justices gave a joint dissenting opinion. According to them, there was no domestic law or jurisprudence on whether the right not to incriminate oneself could have effects on other persons connected to the crime in question. The Supreme Court had already found that Mr A. had not committed the debtor’s fraud of which he was accused. Therefore the applicant could not have been guilty of receiving the assets that Mr A. had acquired through debtor’s fraud, as indicated in the charges. There were no other charges against him. Consequently, the applicant’s case should be re-opened, all charges against him dismissed and he should be freed from all sanctions imposed on him. 20. Chapter 39, sections 2 and 3, of the Criminal Code (rikoslaki; strafflagen, Act no. 769/1990, as in force at the relevant time) provide the following: “Fraud by a debtor A debtor who, in order to obtain unlawful financial benefit for himself or herself or another in bankruptcy, enforcement, debt adjustment or restructuring proceedings (1) conceals his or her property, (2) reports a liability that is false in full or in part, or based on a sham transaction, (3) gives other false or misleading information on a circumstance that is significant from the point of view of the creditors, or (4) fails to report a liability, shall be sentenced for fraud by a debtor to a fine or to imprisonment for at most two years. If the debtor rectifies the misleading information or otherwise prevents the effect of his or her act on the proceedings before he or she attests to the correctness of the estate inventory or before the misleading information otherwise affects the proceedings, the act is not deemed fraud by a debtor. Aggravated fraud by a debtor If in the fraud by a debtor (1) considerable benefit is sought or (2) the debtor attests in court to the correctness of the false or misleading information and the fraud by the debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated fraud by a debtor to imprisonment for at least four months and at most four years.” 21. Chapter 32, section 1, of the Criminal Code (Act no. 769/1990, as in force at the relevant time) provides the following: “Receiving offence A person who hides, procures, takes into his or her possession or conveys property obtained from another through theft, embezzlement, robbery, extortion, fraud, usury or means of payment fraud or through fraud by a debtor, aggravated fraud by a debtor or intentional deceitfulness by a debtor, or otherwise handles such property although he or she knows that the property was thus obtained shall be sentenced for a receiving offence to a fine or to imprisonment for at most one year and six months. A person shall also be sentenced for a receiving offence if he or she 1) receives, converts, conveys or transfers funds or other property although he or she knows that they were acquired through an offence or replace funds or property acquired through an offence, in order to conceal or obliterate their illegal origin or to assist the offender in evading the legal consequences of the offence, or 2) conceals or obliterates the true nature, origin, location or disposition of or rights to property referred to in paragraph 1, or conceals information about such a circumstance which he or she is obliged to disclose under law.” 22. According to Chapter 32, section 2, of the same Code: “Aggravated receiving offence If the object of the receiving offence is very valuable property and the receiving offence is aggravated also when assessed as a whole, the offender shall be sentenced for an aggravated receiving offence to imprisonment for at least four months and at most four years.” 23. According to Chapter 5, section 7, of the Criminal Code (Act no. 15/2003, as in force at the relevant time), “[w]here a special circumstance vindicates, mitigates or aggravates an act, it applies only to the perpetrator, inciter or abettor to whom the circumstance pertains. An inciter or abettor is not exempted from penal liability by the fact that he or she is not affected by a special circumstance related to the person and said circumstance is a basis for the punishability of the act by the perpetrator.” 24. Chapter 31, section 14, subsection 1, of the Code of Judicial Proceedings (oikeudenkäymiskaari, rättegångs balk, Act no. 109/1960) provides the following: “If the request for the reversal of a final judgment is upheld and it is deemed necessary to retry the case, the Supreme Court shall order the deadline, the court and the manner in which the case is to be brought for a retrial. However, the Supreme Court shall have the right to immediately rectify the judgment, if the case is found to be clear and the request does not concern the reversal of a judgment in a criminal case to the detriment of the defendant.”