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FOURTH
SECTION
CASE OF SUURIPÄÄ v. FINLAND
(Application
no. 43151/02)
JUDGMENT
STRASBOURG
12
January 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Suuripää
v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43151/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Keijo Tapani Suuripää
(“the applicant”), on 4 December 2002.
- The
applicant was represented by Mr Simo Ellilä, a lawyer practising
in Helsinki. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that the Supreme Court had reversed
the Court of Appeal's judgment to his disadvantage without holding an
oral hearing and that the criminal proceedings against him had been
excessively long.
- On
20 December 2005 and 3 December 2008 the President of the Fourth
Section decided to communicate the complaints concerning the
excessive length and the lack of an oral hearing to the Government.
It was also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Espoo.
- In
1992 he became a member of a police rally driving club called
Handcuff Team Police Finland ry. In 1997, he was elected Chairman of
the club.
- In
May 1998, the applicant took part in a rally in Belgium with a car he
had rented. As he was bringing the car back to Finland, the Customs
Authorities took note of the fact that the registration of the car
had been changed. They started a criminal inquiry into the matter. On
7 July 1998, the Office of the Prosecutor General
(Valtakunnansyyttäjänvirasto, Riksåklagarämbetet)
decided that a police investigation should be carried out into
whether the applicant had been aware of the change in the
registration.
- On
the same date, the Office of the Prosecutor General decided that a
police investigation should also be carried out into whether the
applicant had accepted bribes while collecting funds for the rally
club. In exchange for the money received, the donor's sticker
appeared on the car. The present application concerns these
proceedings.
- The
police investigation of the bribery case commenced on 7 July 1998
and the applicant was arrested the next day. It appears that the
applicant was informed about the suspicion of offences only when
arrested. He was suspended from his post in the Police Department of
the Ministry of the Interior (sisäasiainministeriön
poliisiosasto, inrikesministeriets polisavdelning) from 8 July
1998 until 15 February 2001, that is, for a period of two years and
seven months. The Ministry of the Interior withheld half of the
applicant's salary for the periods from 9 July 1998 to 9 August 1998
and from 8 November 1998 to 14 February 2001.
- On
4 October 1999 R., a State Prosecutor (valtionsyyttäjä,
statsåklagare), preferred charges against the applicant for
a bribery violation under Chapter 40, Section 3, of the Penal Code
(rikoslaki, strafflagen). Alternatively, the applicant was
charged with negligent violation of official duty under Section 11 of
the same Chapter. On 18 October 1999 the applicant was
notified of the charge. Because he held the position of a referendary
to the Council of State (Valtioneuvosto, Statsrådet),
the case was to be tried in the Helsinki Court of Appeal (hovioikeus,
hovrätten).
- Following
a plea by the applicant challenging the impartiality of the State
Prosecutor, the Court of Appeal held two oral hearings on 19 and
25 November 1999 after which it held, in a decision given on
29 November 1999, that the State Prosecutor was
disqualified. The applicant had claimed that the investigation had
started after receipt of a letter of denunciation from a police
officer, and that the prosecutor had made this letter disappear in
order not to have to show it to the defence. The Court of Appeal did
not confirm any such action on the part of the prosecutor, but
nevertheless held that, due to these issues, the impartiality of the
prosecutor might appear to be undermined and he was therefore
disqualified.
- Subsequently,
the applicant's case was assigned to another State Prosecutor, K. On
2 February 2000 the applicant received from the new prosecutor a
document entitled “Revised charge” which was dated
31 January 2000. It stated that the applicant had requested, and
the club had subsequently received, contributions totalling 18,000
Finnish marks (FIM: approximately 3,000 euros (EUR)) from a company
which had a business relationship with the Ministry of the Interior.
The money in question had been intended expressly as financial
support for the applicant (the navigator) and another policeman (the
driver) in the rally. The prosecutor took the view that successful
competing abroad would not have been possible without such financial
support and therefore it was to be considered a benefit within the
meaning of the Penal Code. There was no information as to how the
financial support had affected the applicant's performance of his
duties but this personal benefit had been conducive to weakening
confidence in the impartiality of the authority's activities because
the applicant could, due to his position, have influenced the police
department's use of funds and acquisitions, at least for projects for
which he had been responsible. During 1996 and 1997 the applicant had
held the position of presenting official and in practice had
authorised orders or checked the invoices for acquisitions amounting
to FIM 52,410 (approximately EUR 10,800) made by a person
reporting to the applicant from the company now in issue.
- The
applicant replied in writing to both the initial and the revised
charges, arguing that the contributions were not financial support, a
gift or an unlawful benefit but payment for advertising. He
submitted, inter alia, that he had sold advertisements and
concluded such contracts in the name of the club, which had received
the payments and entered them in the books. His superiors had been
aware of this. The applicant had not made any IT equipment
acquisitions and could not even have influenced acquisitions. None of
the facts mentioned in the bill of indictment could have been
conducive to weakening confidence in the impartiality of the
authority's activities.
- On
27 March 2000 the Court of Appeal held a preparatory hearing. The
oral hearing was held from 8 to 10 May and on 15 and 25 May 2000.
- On
22 June 2000, after hearing 19 witnesses and examining a significant
amount of documentary evidence, the Court of Appeal acquitted the
applicant.
- The
court found that the applicant had accepted a benefit connected to
his work but that his possibilities to influence IT spending were too
insignificant for his actions to lead to loss of confidence in the
impartiality of the authority's activities from an outsider's
viewpoint. He had not made any decision to acquire IT equipment from
the company or in any other way tried to influence the procedure with
regard to acquisition from that company. The benefit had been paid to
the club, which had allocated it to the applicant and it had been
based on advertising and co-operation contracts concluded by the
applicant on behalf of the club. In those transactions the applicant
had mentioned his job title and office.
- As
to the conclusions to be drawn, the Court of Appeal noted that the
central issues to be decided were whether the financial contributions
had been a benefit within the meaning of Chapter 40, Section 3, of
the Penal Code, whether the applicant, on the basis of his post, had
had the possibility to influence the acquisitions from the company
and whether this benefit led to a loss of confidence in the
impartiality of the authority's activities. The court answered the
first question in the affirmative. As to the second question, it
noted that the applicant's influence was too insignificant. As to the
third question, having regard to his limited influence, the court
held that it also had to be answered in the negative. Accordingly,
the bribery violation charge had to be dismissed.
- As
to whether the applicant was guilty of negligent violation of
official duty, the Court of Appeal found that confidence may be
weakened more easily for the purposes of negligent violation of
official duty compared to bribery violation. It concluded that
confidence in the applicant as an official, and in the police as an
authority, had been weakened within the meaning of Section 15 of the
State Civil Servant Act (valtion virkamieslaki,
statstjänstemannalagen). However, the court found that the
acts were as a whole trivial having regard to their harmful and
detrimental effect and other circumstances and therefore it also
dismissed the charge for negligent violation of official duty.
- The
prosecutor appealed. He renewed his claims and took the view that the
credibility of the testimonies received was not at issue but that the
case turned on the conclusions to be drawn from those testimonies. In
his reply to the prosecutor's appeal the applicant submitted that he
did not wish to have an oral hearing if the decision of the Court of
Appeal was to be upheld. If, however, the decision was to be amended
to his disadvantage, that could not take place without a new oral
hearing.
- On
3 November 2000 the applicant filed a complaint with the
Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman) which gave a decision on 31 January 2001. The
Parliamentary Ombudsman also informed the applicant that he himself
could request the Ministry of the Interior to terminate the
suspension from office, which he did on 5 February 2001. Following
the decision by the Parliamentary Ombudsman recommending that a new
decision on the suspension of the applicant be adopted on the basis
of the essentially changed circumstances, the Police Department
granted a termination petition on 7 February 2001. According to the
decision of 9 February 2001 by the Ministry of the Interior, the
judgments concerning the applicant had not become final. However, in
the decision it was noted that the circumstances had essentially
changed since the time of his suspension from office, and that
waiting for the final judgments could take a long time. Therefore,
the Ministry of the Interior held that it was unreasonable to
continue the applicant's suspension from office after 15 February
2001 and terminated it on that date.
- On
13 June 2002, the Supreme Court (korkein oikeus, högsta
domstolen), without holding an oral hearing, overturned the lower
court's decision and convicted the applicant of a bribery violation,
sentencing him to a fine of EUR 532 and ordering
the proceeds of the crime, EUR 3,027.38, forfeit
to the State. It noted that on the applicant's request the company
had, via the club, on the basis of advertising and
co-operation contracts paid FIM 18,000
to him, who had held a post as senior crime
inspector in the Police Department of the Ministry of the Interior.
The money had been used to cover costs incurred by the applicant and
his rally partner in their police rally activities, carried out
chiefly during their spare time. According to the contracts, the
company's sticker was displayed on the car. The Police
Department of the Ministry of the Interior had, between 1996 and
1998, acquired at least FIM 200,000 (approximately EUR 40,500) worth
of IT equipment from the company. Equipment had also been acquired
for persons reporting to the applicant and five invoices for a total
of FIM 52,410 from 1996 and 1997, mentioned in the Court of
Appeal's judgment, had either been checked by the applicant or his
name had been the reference on the invoice.
- The
court went on:
“In its judgment the Court of
Appeal has given an account of what has become apparent as to the
applicant's position and the related possibilities to influence
acquisitions of IT equipment, [the company's] relevant equipment
deliveries, the applicant's police rally activity and the financial
support paid by [the company] and its nature.
In the Supreme Court the
questions to be examined concern the legal assessment of the
application of criminal law to the applicant's actions and the
possible consequences.
The public prosecutor has taken the view that the
applicant is guilty of a bribery violation within the meaning of
Chapter 40, Section 3, of the Penal Code or at least of negligent
violation of official duty within the meaning of Section 11 of the
same Chapter. According to the first-mentioned provision, an official
must be convicted, if the act is not punishable as the acceptance or
aggravated acceptance of a bribe, of a bribery violation if he
demands, receives or accepts a gift or other benefit meant for
himself or for another person or demands or accepts a promise or
offer to that effect which is conducive to weakening confidence in
the impartiality of the authority's activities. The applicability of
the provision on negligent violation of official duty requires that a
public official, when acting in his or her office, has through
carelessness violated his or her official duty based on the
provisions or regulations to be followed in official functions, and
the act, when assessed as a whole and taking into consideration its
detrimental and harmful effect and the other circumstances connected
with the act, is not of a trivial nature. The prosecutor considers
that the applicant has breached Section 15 of the State Civil Servant
Act. It provides that “[a] public official may not demand,
accept or receive financial or other benefit which may weaken
confidence in the official or the authority.”
The sum of FIM 18,000 paid by [the company] for the
promotional spot on the car of the applicant and his rally partner
has been allocated, as noted in the Court of Appeal's judgment, to
the use of the acquirer of the contract, the applicant. From the
applicant's point of view, the essential content of the advertising
contracts has been to obtain financial support to cover costs
resulting from his leisure activity. This comes down to a benefit
within the meaning of Section 15 of the State Civil Servant Act and
Chapter 40, Section 3, of the Penal Code. The question of how much of
his own assets the applicant has used for his hobby lacks
significance in this assessment.
For the act to be a bribery violation, there has to be
some sort of a link between the benefit and the official's service.
As the Court of Appeal has also noted, the bribery provisions may
also cover benefits received by an official in his or her spare time
or benefits meant to be used for such a purpose. It has been clear to
the parties to the advertising and co-operation contracts that they
have amounted to contributions to the rally activities of policemen,
in which the applicant has been engaged. The financial support
acquired by the applicant for his hobby from [the company], which has
been doing business with his office, is linked in such a way to the
applicant's position as to be sufficient for the purposes of the
penal provision concerning a bribery violation. Whether or not the
applicant has sent to [the company] written co-operation offers
explicitly disclosing his official title or office is not decisive.
The application of the penal provision concerning a
bribery violation requires that the benefit received has been
conducive to weakening confidence in the impartiality of the
authority's activities. Thus it does not require, as does acceptance
of a bribe within the meaning of Chapter 40, Section 1, of the Penal
Code, that the official has demanded or received the benefit for an
action taken in office, nor that through the benefit [someone] has
influenced or tried to influence that action or that the benefit
would have been conducive to influencing that action. What is
relevant for the purposes of a bribery violation is whether the
demanding, receipt or acceptance of the benefit typically has been
such that it normally, from an outsider's viewpoint, weakens
confidence in the impartiality of the authority's activities. By “an
authority's activities” in this context is meant the activities
carried out in general in the position in question. What the
provision aims to ensure is that an official does not act in a manner
conducive to arousing suspicion of the existence of inappropriate
motives in the authority's activities. In the assessment of an
activity, regard must be had to the fact that confidence in an
authority's activities may be particularly vulnerable to weakening.
Due to the nature of police activity, the neutrality and
impartiality of the police and an individual policeman are required
to meet especially high standards. The applicant has held a
significant post as a senior crime inspector in the police activity
unit of the Police Department of the Ministry of the Interior and as
the person responsible for projects, to which position, from an
outsider's viewpoint, is attached an extensive possibility to
influence. The fact that the applicant has repeatedly accepted
financial support from a company with which his department has had a
continuous business relationship, is likely to raise suspicion in
outsiders as to the impartiality of the handling of purchases
connected with police activity. In the assessment of the case the
extent to which the applicant has de facto influenced the
coming about or the continuation of the business relationship is not
decisive. Having regard to the aforementioned position of the
applicant within the Police Department, and the relationship between
it and the provider of the benefit, the applicant's actions have been
conducive to weakening confidence in the impartiality of the
authority's activities for the purposes of the penal provision on
bribery violation.
The above-mentioned actions by the applicant fulfil the
constituent elements of a bribery violation only if it can be judged
that he has acted with intent. As the case concerns the receipt of
personal financial benefits which are connected with the authority's
activity, the non-existence of regulations on fund-raising for the
police associations or the knowledge of the applicant's superiors of
his police rally hobby have no relevance in the assessment of intent.
Nor can actions of an official be assessed on the same basis as
regards fund-raising of motorsports or clubs. Having regard to the
applicant's position, training and duties, the Supreme Court
considers that he must have understood that his acts were conducive
to weakening confidence in the impartiality of the authority's
activities.
...
Taking into account the considerations on which the
Supreme Court's decision is based, an oral hearing is not needed.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Penal Code and State
Civil Servant Act
- Chapter
40, Section 3, of the Penal Code provides:
“If a public official, for himself or herself or
for another
1) asks for a gift or other unlawful benefit or
otherwise takes an initiative in order to receive such a benefit, or
2) accepts or agrees to a gift or other benefit or
agrees to a promise or offer of such a gift or other benefit
where such actions are conducive to weakening confidence
in the impartiality of the authority's activities, he or she shall be
sentenced, if the act is not punishable as the acceptance or
aggravated acceptance of a bribe, for a bribery violation to a fine
or to a maximum term of six months' imprisonment.”
- Chapter
40, Section 11 of the same Code provides:
“If a public official, when acting in his or her
office, through negligence or carelessness violates his or her
official duty based on the provisions or regulations to be followed
in official functions, and the act, when assessed as a whole and
taking into consideration its detrimental and harmful effect and the
other circumstances connected with the act, is not of a trivial
nature, he or she shall be sentenced for negligent violation of
official duties to a warning or to a fine.”
25. Section
15 of the State Civil Servant Act provides:
“A
public official may not demand, accept or receive a financial or
other benefit which may weaken confidence in the official or the
authority.”
B. Code of Judicial Procedure and Criminal Procedure
Act
- Chapter
26, Section 15, of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken)
provides:
“1) An court of appeal shall hold a main hearing
regardless of whether one has been requested, if a decision on the
matter turns on the credibility of the testimony admitted in the
district court or the findings of the district court in an
inspection, or on new testimony to be admitted in the court of
appeal. In this event, the evidence admitted in the district court
shall be readmitted and the inspection carried out again in the main
hearing, unless there is an impediment to the same.
2) If the evidence referred to in paragraph 1) cannot be
readmitted in the main hearing, the decision of the district court
shall not be changed for that part, unless the evidence for a special
reason is to be assessed differently. However, a decision on a charge
may be changed in favour of the defendant of a criminal case.”
- Chapter
30, Section 20, subsection 1, of the same Code provides:
“Where necessary, the Supreme Court shall hold an
oral hearing where the parties, witnesses and experts may be heard
and other information admitted. The oral hearing may be restricted to
a part of the case on appeal.”
- According
to Chapter 5, Section 13, subsection 1, of the Criminal Procedure Act
(laki oikeudenkäynnistä rikosasioissa, lagen om
rättegång i brottmål; Act no. 689/1997), if the
respondent has been detained, a travel ban has been imposed on him or
her or if he or she has been suspended from office, the main hearing
must be organised within two weeks from the lodging of the criminal
charges. If the decision on the above measures has been taken after
the lodging of the charges, the period is calculated from the date of
that decision.
C. Forum
- According
to section 39 of the Standing Orders of the Council of State
(valtioneuvoston ohjesääntö, reglementet för
statsrådet; Act no. 1522/1995, as in force at the relevant
time), charges against a civil servant, who held a position of a
referendary to the Council of State, were to be examined by the
Helsinki Court of Appeal as the first instance. This provision was
first transferred by Act no. 145/2000, which entered into force on
1 March 2000, to the Act on Council of State (laki
valtioneuvostosta, lagen om statsrådet; Act no. 78/1922).
The provision was then repealed by the Act no. 962/2000, which
entered into force on 1 December 2000.
D. Supreme Court's practice
- According
to the Supreme Court's precedent cases KKO 1992:140 and KKO
1995:115, a court of appeal could not reverse the outcome of the
district court without holding an oral hearing and hearing the
witnesses directly.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LACK OF AN ORAL HEARING
- The
applicant complained under Article 6 § 1 of the Convention about
the lack of an oral hearing during the Supreme Court proceedings. The
Supreme Court had reversed the Court of Appeal's judgment to the
applicant's disadvantage without holding an oral hearing.
- Article
6 § 1 of the Convention reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... public hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that the Court of Appeal had assessed his case
on the basis of the witness statements. According to him, the
conclusions made by the Court of Appeal could not be assessed by the
Supreme Court in any other way, certainly not to his disadvantage,
without holding an oral hearing.
- The
Government pointed out that the assessment made by the Supreme Court
of the applicant's possibilities to influence IT purchases did not
differ from that made by the Court of Appeal. Instead, the Supreme
Court had made a different legal assessment of the case, which had
not been dependent on the extent to which the applicant had de
facto influenced the business relationship in question. The
Supreme Court's assessment was thus a pure legal assessment.
Moreover, it appeared that the applicant had only wanted to have an
oral hearing if the assessment of evidence by the Supreme Court were
to differ from that made by the Court of Appeal. However, according
to Finnish law, such a conditional request for an oral hearing was
not possible. There had been no dispute over facts as the Supreme
Court had not reassessed the evidence presented in the Court of
Appeal. The different outcomes had been due to a different legal
interpretation by the Supreme Court of the essential elements of the
offence and their application to the facts already established by the
Court of Appeal.
- The
Court reiterates at the outset that the entitlement to a “public
hearing” in Article 6 § 1 necessarily implies a right to
an “oral hearing”. However, the obligation under Article
6 § 1 to hold a public hearing is not an absolute one. Thus, a
hearing may be dispensed with if a party unequivocally waives his or
her right thereto and there are no questions of public interest
making a hearing necessary. A waiver can be explicit or tacit, in the
latter case for example by refraining from submitting or maintaining
a request for a hearing (see, among other authorities, Håkansson
and Sturesson v. Sweden, 21 February 1990, § 66, Series A
no. 171 A; and Schuler-Zgraggen v. Switzerland, 24 June
1993, § 58, Series A no. 263).
- In
the present case, the applicant did not request an oral hearing to be
held before the Supreme Court unless the court were to assess the
evidence differently to the Court of Appeal. It was in the
applicant's interest to have an oral hearing only if his acquittal
were to be changed. The Court considers that this kind of request,
although conditional, suffices to show that the applicant did not
intend to waive his right to an oral hearing. It remains to be
examined whether the circumstances of the applicant's case were such
as to justify the absence of an oral hearing.
- The
Court points out that in proceedings before a court of first and only
instance there is normally a right to a hearing (see Håkansson
and Sturesson v. Sweden, cited above, § 64). However,
the absence of a hearing before a second or third instance may be
justified by the special features of the proceedings at issue,
provided a hearing has been held at first instance (see Helmers v.
Sweden, 29 October 1991, § 36, Series A no. 212 A).
Accordingly, unless there are exceptional circumstances which justify
dispensing with a hearing, the right to a public hearing under
Article 6 § 1 implies a right to an oral hearing at least
before one instance. A hearing may not be necessary, for example when
it raises no questions of fact or law which cannot be adequately
resolved on the basis of the case file and the parties' written
observations (see, inter alia, Döry v. Sweden,
no. 28394/95, § 37, 12 November 2002; Lundevall v.
Sweden, no. 38629/97, § 34, 12 November 2002;
Salomonsson v. Sweden, no. 38978/97, § 34, 12 November
2002; and mutatis mutandis, Fredin v. Sweden (no. 2),
23 February 1994, §§ 21-22, Series A no. 283 A;
Fischer v. Austria, 26 April 1995, § 44, Series A
no. 312; and Elo v. Finland, no. 30742/02, § 35, 26
September 2006).
- The
Court reiterates that a person charged with a criminal offence
should, as a general principle based on the notion of a fair trial,
be entitled to be present at the first-instance hearing. However, the
personal attendance of the defendant does not necessarily take on the
same significance for an appeal hearing. Indeed, even where an
appellate court has full jurisdiction to review the case on questions
both of fact and law, Article 6 does not always entail the right to a
public hearing and to be present in person. Regard must be had in
assessing this question to, inter alia, the special features
of the proceedings involved and the manner in which the defence's
interests are presented and protected before the appellate court,
particularly in the light of the issues to be decided by it and their
importance for the applicant (Belziuk v. Poland, 25 March
1998, § 37, Reports of Judgments and Decisions 1998 II;
and Kremzow v. Austria, 21 September 1993, §§ 58-59,
Series A no. 268 B).
- In
the present case, the Court notes at the outset
that a public hearing was held at first instance, at which the
applicant and several witnesses were heard.
- It
remains to be examined whether a departure from the principle that
there should be such a hearing could, in the circumstances of the
case, be justified at the appeal stage by the special features of the
domestic proceedings viewed as a whole. In order to decide on this
question, regard must be had to the nature of the Finnish appeal
system, to the scope of the Supreme Court's powers and to the manner
in which the applicant's interests were actually presented and
protected before the Supreme Court particularly in the light of the
nature of the issues to be decided by it (see, mutatis mutandis,
Ekbatani v. Sweden, 26 May 1988, § 28, Series A no. 34).
- The
Court observes that the Finnish appellate courts' jurisdiction is not
limited to matters of law but also extends to factual issues. Under
Chapter 26, section 15, of the Code of Judicial Procedure, a
court of appeal shall hold an oral hearing if the credibility of the
testimony admitted in the district court is at issue. If such
evidence cannot be readmitted in the oral hearing, the decision of
the district court shall not be changed for that part, unless there
are special reasons to assess the evidence differently. This
provision, however, only applies when the appellate court is a court
of appeal. In the instant case it was the Supreme Court that was
called upon to examine the appeal as to both the facts and the law.
- The
Court notes that, according to its own words, the Supreme Court did
not reassess the testimony received nor the facts established by the
Court of Appeal but only gave a different legal meaning to these
facts. This different legal assessment led to a different outcome to
that of the Court of Appeal. It is true that, in the circumstances of
the instant case, the issue in question was not the credibility of
the witness statements as such but rather how they were legally
interpreted. The Supreme Court's examination thus focused mainly on
legal questions without modifying the facts established by the Court
of Appeal. The Court considers, however, that in cases like the
present one, the facts and the legal interpretation can be
intertwined to an extent that it is difficult to separate the two
from each other. Although the Supreme Court examined the case mainly
from the legal point of view and despite the fact that the facts
established by the Court of Appeal were not disputed, the Supreme
Court had to some extent to make its own assessment for the purposes
of determining whether the facts provided a sufficient basis for
convicting the applicant. This is especially true with regard to the
question of intent which was expressly examined only by the Supreme
Court. Moreover, when deciding on sentence, the Supreme Court did not
even have the benefit of having a prior assessment of the question by
the lower court which had heard the applicant directly (see Botten
v. Norway, 19 February 1996, §§ 49-50, Reports
1996 I).
- In
addition, bearing in mind the character of the offence in question,
the Court considers that the outcome of the proceedings necessarily
adversely affected the applicant's professional career and reputation
(see, mutatis mutandis, Helmers v. Sweden, cited above,
§ 38). Indeed, criminal conviction and sentence for a bribery
violation is a serious matter for any public official.
- The
Court notes that it appears that neither the applicant nor his
counsel were provided with any opportunity to put forward their views
in writing when it became apparent that the Supreme Court was going
to change the outcome of the Court of Appeal's judgment. Even though
the applicant was given an opportunity to reply to the public
prosecutor's renewed claims and he was at all times legally
represented in the appeal proceedings, he or his counsel did not have
at any point of the proceedings a possibility, either in writing or
orally, to react to the fact that the Supreme Court was going to
convict the applicant and to sentence him (see mutatis mutandis
Sigurþór Arnarsson v. Iceland, no.
44671/98, § 36, 15 July 2003; and Igual Coll v. Spain,
no. 37496/04, § 37, 10 March 2009).
- Taking into account what was at stake for the
applicant, the Court does not consider that the issues to be
determined by the Supreme Court when convicting and sentencing the
applicant - and in doing so overturning his acquittal by the Court of
Appeal -could, as a matter of fair trial, properly have been examined
without a direct assessment of the evidence given by the applicant in
person.
- Having
regard to the foregoing, to the nature of the issues adjudicated on
and to the fact that the Supreme Court acted in the present case as
the first appellate court, the Court finds that, in the circumstances
of the present case, the Supreme Court could not adequately resolve
the applicant's case without holding an oral hearing. There has
accordingly been a breach of Article 6 § 1 of the Convention in
respect of the lack of an oral hearing.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant also complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention.
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
period to be taken into consideration began on 8 July 1998 when the
applicant was apprehended as a suspect in the pre-trial investigation
and ended on 13 June 2002 when the Supreme Court rendered its
judgment. The proceedings thus lasted some three years and eleven
months at two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Government pointed out that the pre-trial investigation had lasted
nine months and the consideration of charges six months in the
present case. They had thus been swift. The change of the State
Prosecutor, requested by the applicant, had resulted in a delay of
about two months during the Court of Appeal proceedings which had,
however, been concluded in about eight months. The Court of Appeal
proceedings had thus been conducted speedily, as requested by both
State Prosecutors. The proceedings before the Supreme Court had
lasted almost one year and ten months. The national legislation did
not impose a similar urgency requirement on the Supreme Court as was
applicable to the courts of appeal but nevertheless these proceedings
had been compatible with the “reasonable time”
requirement. There had thus not been any unnecessary periods of
inactivity attributable to the courts or other national authorities.
As to the complexity, the Government pointed out that cases like the
present one involving a high-ranking public official, the public
interest and the need to maintain confidence in the activities of
public authorities required particularly careful investigation. The
case had been very extensive and demanding both judicially and in
practical terms. The thorough examination of the case had also been
in the applicant's interest.
- As
to the applicant's suspension from office, the Government maintained
that this precautionary measure had been necessary as the criminal
suspicions against the applicant had been considered essentially to
affect his qualifications to perform his official duties which
included, inter alia, duties related to economic offences and
combating crime. The courts hearing the criminal charges had not been
competent to assess the applicant's suspension as that decision had
been an administrative one. The applicant had appealed against the
administrative decision in a separate set of proceedings which were
of no significance in relation to the length of the criminal
proceedings at stake in the present case.
- As
to the diligence requirement in Chapter 5, Section 13 of the Criminal
Procedure Act, the Government pointed out that the applicant had not
invoked the said provision before the domestic courts. The provision
only concerned the time-limit for holding an oral hearing but it did
not apply to the present case as it had been heard by a court of
appeal as the first instance, and not by a district court. Instead,
the Court of Appeal had applied a similar provision in the Degree of
Courts of Appeal, according to which primacy must be given to cases
against persons suspended from office. No significance could thus be
given to the diligence requirement in Chapter 5, Section 13 of the
Criminal Procedure Act in the present case.
- The
applicant maintained that his case had been neither complex nor
time-consuming. Nor could he be regarded as having contributed to the
length of the proceedings by filing a disqualification plea as he had
only exercised his legal rights in the case. It was to be noted that
the Court of Appeal had accepted his plea.
- As
to his suspension from office, the applicant noted that, according to
national law, a suspension from office was comparable to imprisonment
and constituted, together with the withdrawal of salary, a severe
punishment for a suspected criminal act. These issues were
significant in the present case as cases against suspended persons,
like those against detained persons, had always to be treated
urgently.
- As
to the diligence requirement in Chapter 5, Section 13 of the Criminal
Procedure Act, the applicant contested not having relied on the
provision in question. He had done so orally on receipt of the
summons. The provision did apply to the present case but it had not
been complied with by the Court of Appeal.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above; and Ruotolo
v. Italy, 27 February 1992, § 17, Series A no. 230 D).
Having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present case.
It notes in particular that the Government have not explained why the
case was not dealt with more expeditiously, having regard to the
terms of the relevant national provisions. It observes that the
applicant's situation fell within the ambit of cases that had to be
treated urgently. He was suspended from office, due to the pending
criminal proceedings, for a period of two years and seven months and
for most of this time he received only half of his salary. However,
the proceedings against him lasted almost four years.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the Convention
in respect of the length of the proceedings.
III. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 6 § 1 of the Convention
that the evaluation of charges had been carried out by a disqualified
prosecutor. He claimed that the new prosecutor had not evaluated the
charges anew, begun a new trial or preferred a new charge. He further
complained, under Articles 6 § 1 and 7 of the Convention, that
the provision concerning the charge of a bribery violation in the
Penal Code was so unclear that an official could not know beforehand
whether his activities to collect money for an association would be
assessed as criminal. Lastly, he complained that he had been
discriminated against on grounds of his official rank because, if the
charge had been dealt with by the District Court, an oral hearing
would have been held before the appellate court, namely, the Court of
Appeal. Because of his capacity as a high-ranking government
official, the case had first been heard by the Court of Appeal.
Consequently, the Supreme Court had been the first appellate court.
In addition, the way in which the applicant had been treated during
the national procedure violated the principle of equality.
- Having
regard to the case file, the Court finds that the matters complained
of do not disclose any appearance of a violation of the applicant's
rights under the Convention. Accordingly, this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 26.125,73 euros (EUR) plus interest in respect of
pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.
- The
Government pointed out that there was no causal link between the
applicant's pecuniary damage claims and the alleged violations of
Article 6 § 1 of the Convention. As to the non-pecuniary damage,
the Government considered that the applicant's claims were excessive
as to quantum and that the compensation for non-pecuniary
damage in respect of the lack of an oral hearing should not exceed
EUR 1,300 and in respect of the excessive length EUR 800.
- The
Court does not discern any causal link between the violations found
and the pecuniary damages alleged; it therefore rejects these claims.
On the other hand, it awards the applicant EUR 6,250 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 12,405.38 for the costs and expenses
incurred before the domestic courts and EUR 5,190.81 for those
incurred before the Court.
- The
Government contested these claims. The fact that not all of the
applicant's complaints had been communicated should be taken into
account. As to the costs and expenses before the domestic courts, the
Government noted that no documentation had been submitted as required
by Rule 60 of the Rules of Court. No award should thus be made under
this heading. As to the costs and expenses incurred before the Court,
the Government observed that the claims included the applicant's own
costs and expenses for which he had not submitted any supporting
documents and which were normally not even compensated. In any event,
the Government considered that the applicants' claims concerning his
counsel and the translation costs were excessive as to quantum
and that any award under this head should not exceed EUR 500
(inclusive of value-added tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being
had to the information in its possession and the above criteria, the
Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 2,500
(inclusive of value-added tax) for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the lack of
an oral hearing and the length of the proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the lack of an oral
hearing;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
6,250 (six thousand two hundred and fifty euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
