ELOMAA v. FINLAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Kimmo Elomaa, is a Finnish national who was born in 1953 and lives in Sweden. He was represented before the Court by Mr Jarkko Tamminen, 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, may be summarised as follows. On 20 December 1990 a Swedish District Court convicted the applicant of, inter alia, aggravated tax fraud and sentenced him to five years’ imprisonment. In an administrative procedure he was ordered to pay outstanding taxes, which he failed to do. Therefore, the Swedish authorities requested judicial assistance in the enforcement of those claims. On 2 July 1996 the applicant was apprehended for the purpose of an enforcement inquiry (ulosottoselvitys, utsökningsutredning) conducted within the framework of a debt recovery procedure in Finland. The applicant was cautioned by the Bailiff (ulosottomies, utmätningsmannen) to the effect that he was under an obligation to give truthful information under penalty of a fine and that giving incorrect information or withholding information could constitute fraud. A policeman who had brought in the applicant was present during the inquiry. The applicant stated that he owned a Rolex watch and a Mercedes car. He also owned a Harley Davidson motorcycle, which was in Spain. He maintained that he had no other assets in Finland or elsewhere. The Bailiff seized the watch and the car. On 26 May 1998 the applicant was detained as a suspect in an aggravated debtor’s fraud as it was alleged that he had concealed assets in the enforcement inquiry on 2 July 1996. He was also suspected of having made erroneous register entries concerning a number of vehicles other than those mentioned above. A summary part of a pre-trial investigation report relating to the case indicated the following: “This investigation is based on an information notice made on 3 October 1994 by the Financial Supervision Agency (rahoitustarkastus, finansinspektionen) to the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) concerning suspected money laundering. According to the notice the [bank O.] had, on 22 September 1994, received from abroad a payment of 94,514 Finnish marks (FIM) to be transferred to a person called [M.M.]. The sender of the money had been a person called [the applicant], who resides in Spain. During the examination into the matter it came to light that on 14 July 1994 [M.M.] appeared to have lent from his cash funds a sum of FIM 720,000 to [company Ä] for the purchase of real estate owned by [company H.]. [M.M.] had concealed that claim in an enforcement inquiry conducted on 8 September 1995. A criminal report no. 7000/R/580/96 concerning that matter was registered by the National Bureau of Investigation on 3 September 1996 in respect of [M.M.] on suspicion of debtor’s fraud and other offences. In the course of that investigation, it was discovered that the above payment of FIM 720,000 had not been genuine and that, de facto, the receipt confirming that payment had been drawn up to conceal from [the applicant’s] creditors the financial arrangements concerning and the true ownership of his possessions. On that account, [investigator A.] of the Turku unit of the National Bureau of Investigation decided to institute pre-trial investigations into, firstly, a suspected receiving offence, report no. 2511/R/621/97 (251/R/396/98), and later a suspected debtor’s fraud, report no. 2511/R/386/98. The basis for these suspicions has been [the applicant’s] conviction in 1990 of tax fraud in Sweden and [his] concealing from the Swedish State assets acquired through business activities for the purpose of avoiding tax and [other] payments. This had formed the basis of a claim for FIM 20,345,159.30 by the Swedish State in respect of [the applicant]. The assets thus gained, and concealed, have subsequently been transferred to Finland by partly using moneys to purchase property, in appearance, for [the applicant’s] immediate circle. The initial offence relating to the possible receiving offence [in this connection] was the aggravated tax fraud of which [the applicant] was convicted in 1990. The Swedish State (Kronofogdemyndigheten) has, as a creditor, requested the Finnish authorities to undertake enforcement measures to recover its claim of FIM 20,345,159.30. In the pre-trial investigation, conducted for the above reasons, it has emerged [circumstances], to be specified hereafter, giving probable cause to suspect that, de facto, property acquired under the name of other persons is controlled by [the applicant] and purchased with his moneys and that, at the time of the enforcement measures conducted on 2 July 1996 and 28 May 1998, he has had in his possession abroad moneys which have been concealed in the enforcement proceedings.” On 12 May 2000 and 11 January 2001 charges were brought against the applicant for aggravated debtor’s fraud, five registration offences and four counts of instigation to commit registration offences. As to the fraud charge, the prosecutor alleged that the applicant had failed on 2 July 1996 to account for moneys on two foreign bank accounts, a property in Spain, shares in a Finnish limited liability company, shares in two Finnish housing companies and two cars. One of those cars, an Opel, was also the object of one of the alleged registration offences. According to the prosecutor the applicant had on 14 May 1996 registered that car as belonging to another person X. although he had been its true owner. The applicant denied having concealed any possessions in the enforcement inquiry held on 2 July 1996, arguing that he was not the owner of the property mentioned in the bills of indictment. The applicant submitted that the prosecutor was wrong in assuming that he was in the possession of proceeds of the tax fraud, for which he had been convicted in Sweden. Even if that were the case, it would not constitute a separate offence. Nor could a person be punished for not giving information concerning such property in subsequent enforcement proceedings. As to the alleged registration offences and instigation thereto the applicant contended that all the information given to the registration authorities had been accurate. Further, the applicant contended that in the enforcement inquiry of 2 July 1996 he had been forced, under pain of a fine and in the presence of a police officer, to divulge self-incriminating information. As he, at the material time, had been suspected of at least money laundering, the procedure had been in breach of Article 6 § 1 of the Convention. On 18 January 2002 the Turku District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated debtor’s fraud and sentenced him to one year and seven months’ imprisonment having found that he had concealed in the enforcement inquiry the moneys in one of the foreign bank accounts, the property in Spain, the shares in Finnish companies and the Opel car. As to the moneys in the other foreign bank account and the other car, the court found that it had not been established that they had belonged to the applicant at the time of the enforcement inquiry. The court ordered the applicant to pay the Swedish State some EUR 304,000 in damages. The charges concerning registration offences and instigation thereto were dismissed. As to the applicant’s argument concerning the alleged self-incrimination, the District Court stated as follows: “[The applicant] is facing charges for concealing property in an enforcement inquiry carried out on 2 July 1996. [He] has on that occasion informed [the Bailiff] that he had no other property, either in Finland or abroad, than what transpired from the enforcement protocol. ... [The applicant] has submitted that a policeman was present at the enforcement inquiry. [The applicant] was then required, under threat of a fine and in the presence of the policeman, to give information concerning an offence. In the light of the material submitted [to the court] it is possible that, in addition to the enforcement authorities, a policeman was present at the inquiry. However, [the applicant] had not at that time been suspected of any offence concerning which evidence could have been obtained through [that] inquiry. [The Bailiff] has submitted that he had been informed by the police that [the applicant] had been driving a [Mercedes car]. Relying on that information, he had decided to carry out an enforcement inquiry and seize the car. ... No evidence has been presented [to the court] that obtaining information about an offence had been even the subsidiary goal of the enforcement inquiry. The only function of that inquiry had been to gain information about [the applicant’s] property. By submitting information in the enforcement inquiry about his property abroad [the applicant] would not have incriminated himself on account of any offence. [He] would not have been obliged to provide information concerning the origin of the assets. As a matter of fact, he had already been sentenced to a punishment regarding those assets in [the Swedish court]. Concealing these assets in the enforcement proceedings was not a part of the offence of which [the applicant] had already been convicted in Sweden. Nor did the matter concern moneys illegally in the possession of [the applicant] or [a co-defendant]. A policeman had been present at the enforcement inquiry because he had escorted the applicant thereto. [The applicant’s] rights under Article 6 of the Convention had thus not been breached in that occasion.” On 30 September 2003 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the applicant’s conviction, endorsing the lower court’s reasoning in the main part. In addition, it convicted the applicant of four registration offences and four counts of instigation to registration offences. One of the erroneous register entries on the basis of which the applicant was convicted concerned the Opel, the same car which the applicant, according to the courts, ought to have accounted for in the enforcement inquiry. The court increased the applicant’s sentence to two years and two months’ imprisonment. His liability in damages was also increased to some EUR 2,594,000. The court accepted the District Court’s view regarding the applicant’s allegation concerning the alleged self-incrimination. On 1 July 2004 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. An enforcement inquiry is resorted to if it has not been possible to establish otherwise the debtor’s financial situation in a reliable manner. A more detailed description of the domestic law regarding such an inquiry may be found in the Court’s judgment of Marttinen v. Finland (no. 19235/03, §§ 27, 33-36, 21 April 2009). Concealment of property and provision of incorrect information in an enforcement inquiry are punishable as a debtor’s fraud under the Penal Code (rikoslaki, strafflagen; Acts no. 769/1990 and 610/1993). At the material time (that is, at the time of the enforcement inquiry), money laundering was punishable as a receiving offence. The relevant provisions of Chapter 32 of the Penal Code were the following: Article 1 - Receiving offence (1) A person who hides, procures, takes into his or her possession or conveys property obtained from another person through theft, embezzlement, robbery, fraud, extortion, means of payment fraud or through fraud by a debtor, aggravated fraud by a debtor or intentional deceitfulness by a debtor, or who otherwise engages him or herself with such property, knowing that the property has been obtained in this way, shall be convicted of a receiving offence and sentenced to a fine or an imprisonment for a maximum period of one year and six months (Act no. 317/1994). (2) A person shall be convicted of a receiving offence also if he or she 1) receives, transforms, conveys or transfers assets or other property which he or she knows to have been acquired through an offence or which has come to replace it, in order to conceal or obliterate its illicit origin or to assist the offender in avoiding the lawful sanctions provided for the offence; or 2) covers up or obliterates the true nature, origin or location of the property referred to in point 1, or disposition thereof or rights thereto, or conceals information concerning those circumstances if he or she is obliged to report it by law (Act no. 1304/1993). Articles 2 – 5 of Chapter 32 set out the punishment for aggravated receiving offence, professional receiving offence, negligent receiving offence and petty receiving offence. Article 6 read: Article 6 – Restrictions (1) A person who has committed the offence by which the property was obtained, shall not be convicted of an offence referred to in Articles 1 – 5 of this Chapter. (2) The provisions of this Chapter do not apply to a person living in the same household as the offender and who only uses or consumes property obtained by the offender for ordinary household needs. By Act no. 61/2003, which came into force on 1 April 2003, separate provisions concerning money laundering were added to Chapter 32 of the Penal Code. The provision concerning restrictions (now Article 11) was also amended in that connection to cover all the offences referred to in that Chapter. It now stated specifically that a person who had committed the offence by which the property was obtained or profit was gained, was not to be convicted pursuant to Chapter 32 of the Penal Code. According to the relevant Government Bill (HE 53/2002), the latter amendment only served to clarify the wording of the provision. Section 96 of the Act on Credit Institutions (laki luottolaitostoiminnasta, kreditsinstitutslag; Act no. 1607/1993), in force at the material time, placed credit and financial institutions under an obligation to report to the Financial Supervision Agency if they had reasons to suspect that assets subject to a transaction were of illicit origin. Subsection 4 of the provision read in relevant parts: “If, based on the information reported to it or other information acquired by it, the Financial Supervision Agency considers that there are reasons to suspect that the matter concerns the concealing or obliterating of the true nature, origin or location of assets acquired through an offence, or disposition thereof or rights thereto, it shall report the matter for examination to the relevant investigating authority. ...” Section 96 of the Act on Credit Institutions was subsequently repealed in 1998 when a new Act on Preventing and Clearing Money Laundering (laki rahanpesun estämisestä ja selvittämisestä, lag om förhindrande och utredning av penningtvätt; Act no. 68/1998) came into effect. The latter statute contained a similar obligation for credit and financial institutions, among others, to report a suspicion of illicit origin of assets or property. The report was to be made to the Money Laundering Clearing House (rahanpesun selvittelykeskus, central för utredning av penningtvätt) within the National Bureau of Investigation. At the material time, making an erroneous register entry was sanctioned under Chapter 16, Article 21 of the Penal Code (Act no. 769/1990). Paragraph 1 of that provision stipulated that a person who, in order to cause a legally relevant error in a public register kept by an authority provided false information to that authority, or in order to gain benefit for himself or another person took advantage of an error caused in that manner, was to be convicted of a registration offence and sentenced to a fine or imprisonment for up to three years. Section 21 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 1/1999), currently in force, provides: “Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.” There are no explicit provisions of law concerning the right to silence and the right not to incriminate oneself. It has been left to the authorities applying the law to respect those rights. The Government Bill for the enactment of the act amending the previous Constitution Act (HE 309/1993) noted that the right to legal protection also included the right of the accused not to testify against himself under the United Nations Covenant on Civil and Political Rights and the Convention.