Right of a complainant to compensation for judicial delay in the consideration of a claim for damages in criminal proceedings
Diary number: R2018/490
Issue date: 7.1.2020
Issue at hand
A had been a party in joined criminal proceedings both as a defendant and as a complainant; the facts of the cases were closely intertwined.
The issue at hand before the Supreme Court is when the proceedings are to be held to have commenced in respect to a claim for damages in a criminal matter, and whether the duration of the proceedings as regards A’s claim has been excessive.
Right to compensation for judicial delay
According to the Constitution of Finland and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law.
The right of a party to compensation for excessive judicial delay is governed by the Act on Compensation for the Excessive Length of Judicial Proceedings (for short, the Delay Compensation Act). Under section 4 of the Delay Compensation Act, in the assessment of whether there has been excessive judicial delay, note should be taken of the duration of the proceedings and also of the nature and extent of the matter, the actions of the parties, authorities and courts during the proceedings, and the significance of the matter to the party. In addition, note should be taken of the case-law of the European Court of Human Rights concerning the application of Article 6(1) ECHR.
Duration of proceedings as regards the complainant’s claim for damages
Under section 5(1)(3) of the Delay Compensation Act, the starting point of the duration of judicial proceedings is the date when a civil claim filed by a party becomes pending in court.
The provision in section 5(1)(3) of the Delay Compensation Act, as regards the starting point concerning a complainant filing a claim for damages in criminal proceedings, is contrary to the case-law of the European Court of Human Rights (e.g., Torri v. Italy, 1 July 1997 , paras. 19–21; Calvelli and Ciglio v. Italy, 17 January 2002, para. 62; Moldovan and others v. Romania (No. 2), 12 July 2005, para. 126; Rezette v. Luxembourg, 13 July 2004, para. 32; Nousiainen v. Finland, 23 February 2010, para. 20; and Karlsson and others v. Finland, 5 September 2006). The provision is in conflict also with section 4(2) of the Delay Compensation Act, under which note should be taken of the case-law of the European Court of Human Rights in the assessment of whether there has been excessive judicial delay.
Section 22 of the Constitution entails the requirement applicable in cases where there are several plausible interpretations of the law. In such cases the alternative that best secures human rights and fundamental rights must be selected. That said, the law must not be interpreted against its letter so that the relevant content of the provision would depart from its purpose as enunciated by the legislature.
It has been noted in the preparatory works of the Delay Compensation Act that the duration of judicial proceedings, as regards the complainant in a criminal case, should be calculated in the same way as in civil proceedings. Moreover, during the legislative process towards an amendment of the Delay Compensation Act, the Legal Affairs Committee of the Parliament of Finland has expressly pointed out that the provision in section 5(1)(3) is contrary to the case-law of the European Court of Human Rights. Nevertheless, the Committee held that there was reason not to amend the provision. There must be persuasive arguments before such a legislative statement can be bypassed.
The Supreme Court notes that a complainant has no proactive remedies against delay by the authorities before a case becomes pending in court, at which time an order of expedited proceedings can on request be issued. This feature emphasises the significance of retroactive remedies. It is clearly the purpose of the law that there must be a finding of judicial delay in such cases where there has been a delay also according to the case-law of the European Court of Human Rights. In Finland, the majority of claims for damages by a complainant in a criminal case are filed during the course of the criminal proceedings. Accordingly, the question whether the rights of the defendant and the complainant to compensation for judicial delay are assessed on the same basis is overwhelmingly more relevant than the question whether the assessment of a separately filed claim and a claim filed during the criminal proceedings is carried out on the same basis.
The Supreme Court holds that there is reason to interpret the provisions of the Delay Compensation Act so that they do not prevent the inclusion of the pre-trial stage in the calculation of the duration of the proceedings as regards the complainant. In this case, the starting point of the duration of the proceedings, as regards A, was when A was being heard during the pre-trial investigation and at that time indicated that A will be claiming for damages.
Delay in the case at hand
According to the established case-law of the European Court of Human Rights, the issue of whether there has been excessive judicial delay must be assessed case by case. This assessment is holistic by its nature, taking due note of the difficulty of the case, the conduct of the applicant, the authorities and the court of law, and the significance of the matter to the applicant. Article 6 ECHR imposes a number of requirements for a fair trial beyond that of avoidance of undue delay. Hence, the holistic assessment may include also the issue whether the court, in its case management, has achieved a reasonable balance among the various requirements for a fair trial.
In the case at hand, the criminal charge underlying the claim for damages has been one of aggravated fraud. The case has been of middling difficulty, but relatively extensive. As regards A’s claim as a complainant, the proceedings have lasted for over six years, three years of which at the district court phase. The irregularly long duration of the district court proceedings has arisen from the poor state of health of the person prosecuted for aggravated fraud, which has prevented that person from participating in hearings, which have consequently been postponed on four occasions.
The Supreme Court notes that the right of a criminal defendant to be heard in person is a significant guarantee of a fair trial. This has not been a situation where the person in question would have been permanently unable to participate in the proceedings. In-person hearing has been necessary in order to resolve the charge of aggravated fraud and of A’s claim for damages that was based on this charge. The evidence on the state of health of the person prosecuted for aggravated fraud indicates that there has been a lawful excuse and that postponement of the hearings has been called for. There would have been no time savings in disjoining the claim for damages from the criminal case and trying it separately, and there would have been no feasible way of expediting the proceedings as regards the claim for damages.
In overall assessment, the Supreme Court holds that there has been no excessive delay in the judicial proceedings relating to A’s claim for damages and that there is no basis for an award of compensation under the Delay Compensation Act or the case-law of the European Court of Human Rights.