EHRM, 21-04-2009, nr. 19235/03

On 6 July 2000 the Bailiff requested the Helsinki District Court (käräjäoikeus, tingsrätten) to order the applicant to pay the administrative fine. The applicant objected, maintaining that he had a right under the Convention to remain silent. As the Bailiff aimed to find out the applicant's existing assets, the matter concerned precisely the same matter as was under investigation in the criminal case if he were now to own something that he had owned already at the time of the earlier enforcement inquiries and the bankruptcy procedure and which he had not accounted for. Also, the fact that the Bailiff aimed to find assets which could be returned meant that the applicant would be required to give information about all assets previously owned by him and assets that had possibly replaced his previous assets, that is, facts which were at issue in the criminal investigation. Lastly, the Bailiff wished to find out the origin of assets already seized from the applicant which, too, was a fact to be examined in the criminal investigation.

On 10 November 2000 the District Court ordered payment of the fine albeit reducing its amount to FIM 50,000 (about 8,409.40 EUR).

The court noted the applicant's arguments under the Convention in which he relied, inter alia, upon the cases of Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI), Funke v. France ( judgment of 25 February 1993, Series A no. 256-A), and John Murray v. the United Kingdom (judgment of 8 February 1996, Reports 1996-I), to the effect that the enforcement inquiry breached his right to a fair trial as he had been put under threat of a fine to compel him to incriminate himself by providing information about his assets, although a criminal investigation into alleged debtor's fraud concerning the same assets was pending.

The court referred to the counter arguments presented by the Bailiff that the purpose of the enforcement inquiry was to obtain information on the applicant's assets in order to fulfil his obligations as a debtor, and concluded that in the present case the enforcement inquiry sought to protect the rights of the creditors. The court concluded that if facts indicating the guilt of the applicant in the pending criminal investigation were to be revealed during the enforcement inquiry, the authorities would be bound by professional secrecy.

The applicant requested the Helsinki Court of Appeal (hovioikeus, hovrätten) to issue interim measures, which were refused on 23 November 2000. He also filed an appeal.

On 22 February 2001 the Court of Appeal rejected his appeal. At the outset, it noted that in the spring of 2001 the applicant and his debtors had reached a friendly settlement and that [on 1 June 2001] having paid about 6.1 million Finnish marks to the Bailiff the applicant had been exempted from the remainder of his debts subject to debt recovery. However, as the friendly settlement had been reached only after the District Court had ordered payment of the administrative fine, the friendly settlement lacked relevance to the present case.

It referred to the cases of I.J.L. and Others. v. the United Kingdom (nos. 29522/95, 30056/96 and 30574/96, ECHR 2000-IX) and Fayed v. the United Kingdom (judgment of 21 September 1994, Series A no. 294-B) and found that:

The applicant sought leave to appeal. On 3 October 2001 the Supreme Court (korkein oikeus, högsta domstolen) granted such leave. On 9 October 2001 it ordered interim measures.

On 19 December 2002 the Supreme Court issued its decision on the merits (precedent no. KKO 2002:116), rejecting the appeal by four votes to one. Even though the applicant alleged the contrary, the Supreme Court was not convinced that the purpose of the impugned enforcement inquiry in the present case was other than that provided for in the Enforcement Act.

At the outset, it noted the contents of the relevant domestic law provisions (sections 33, 34, 34(d) and 40(2) of the Enforcement Act; see paragraph 27 below). It also had regard to Article 14 § 3 of the United Nations Covenant on Civil and Political Rights and case-law concerning Article 6 § 1 of the Convention. The right of the accused not to be compelled to incriminate himself or to confess did not however mean that the accused would also have a right not to comply with an invitation to be present in interrogations or court hearings. The court noted that the applicant had the right not to contribute to the investigation of his possible guilt in the pending pre-trial investigation in which he was suspected of having committed debtor's frauds in connection with earlier debt recovery and bankruptcy procedures. It went on:

Dissenting from the majority, Justice M.A. was of the opinion that the applicant, whom he considered a person ‘charged’, had a valid reason not to fulfil the debt recovery obligations in the light of the Constitution and Article 6 of the Convention. He stressed that although the Bailiff was bound by professional secrecy in the proceedings, the creditors who also had standing as complainants in the criminal proceedings would become aware of the content of the enforcement inquiry. The pre-trial investigation and the enforcement inquiry concerned the same facts, that is, they aimed to find out the applicant's economic situation and the origin of his assets. It was likely that information received in the enforcement inquiry would be used as evidence as regards the applicant's guilt in the criminal proceedings. Section 23(3) of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) did not, to his mind, prohibit the complainants from using this information in the pending criminal proceedings. Justice M.A. concluded that the applicant's right not to incriminate himself was violated.

Meanwhile, on 16 January 2001 in another enforcement inquiry, the Bailiff ordered the applicant to provide information about his assets. The applicant refused, repeating his stance taken in the pending court proceedings, whereupon the Bailiff issued a decision ordering the applicant to provide this information on pain of an administrative fine. On 2 March 2001 the Bailiff requested the Helsinki District Court to order the applicant to pay the administrative fine. On 27 March 2001 the applicant was again required to be present at an enforcement inquiry.

It appears that the Bailiff subsequently waived these measures.

The applicant argued that the enforcement system had its limits and that it could not be used as an extra-effective means to obtain incriminating information from a person ‘charged’.

Contrary to the Government's submission, the applicant took the view that at the material time, there had been no legislation forbidding the use in criminal proceedings of information gathered in an enforcement inquiry.

The applicant submitted that it transpired from the Bailiff's submission of 15 May 2000 to the District Court in a separate enforcement procedure that he had been in close contact with the police on this matter before the applicant had been summoned to appear before the Bailiff in June 2000 and that he had aimed at discovering the applicant's assets while the criminal investigation had lasted. In his submission of 5 July 2000 to the District Court, in another enforcement procedure, the Bailiff had in fact stated to the court that the criminal investigation and the enforcement procedure related to the same matter.

The applicant argued that the creditors requesting enforcement had a right to the information provided to the Bailiff and that they could have made use of it in the pending criminal proceedings.

The applicant submitted that effective enforcement worked as follows. Creditors had a right to have the debtor summoned to appear before the Bailiff, who could force the debtor to give necessary information about his assets whereupon enforcement could be executed. If the debtor failed to fulfil his obligations he could be charged with the offence of debtor's fraud. The issue in the present case was not whether the applicant had a right to remain silent in the enforcement inquiries during the period from 1994 to 1997. The question was whether he had that right in the debt recovery procedure starting on 6 June 2000 when he at the same time had been ‘charged’.

The applicant found his case analogous to the case of Shannon v. the United Kingdom (no. 6563/03, 4 October 2005). In both cases, the criminal proceedings had been frozen by the authorities. What was relevant was that the authorities were not allowed to use compulsion to obtain information that might incriminate the person concerned in criminal proceedings. For this reason the applicant could complain of an interference with his right not to incriminate himself, even though no self-incriminating evidence, or reliance on a failure to provide information, had been used in other, substantive criminal proceedings.

The applicant concluded that the Finnish Government had been after the same information in both sets of proceedings, wishing to obtain information about his assets both through the pre-trial investigation and the debt recovery procedure. As the legislation in place at the material time did not restrict the use of information provided by the debtor in an enforcement inquiry, the applicant could not take the risk that the Bailiff would forward any incriminating information. What was more, the Bailiff and the police had co-operated in his case and the creditors could have made use in the criminal proceedings of information provided in the enforcement inquiry.

The Government submitted that in an enforcement inquiry, the debtor was by law under an obligation to provide the information required. However, the debtor enjoyed effective protection against criminal charges that may be related to such information. The applicant had not alleged that any incriminating information had been used against him in criminal proceedings. The question is whether the present case concerned the use of compulsion for the purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him (see Weh v. Austria, cited above, §§ 41–44). An enforcement inquiry had no connection to criminal proceedings. This was also evident from the legislation hindering the use of information gathered in connection with an enforcement inquiry for any other purpose. The use of information obtained within enforcement procedures was prohibited in another context or for a purpose other than that serving the enforcement. Firstly, it resulted from the explicit provisions of the Enforcement Act that an enforcement inquiry may only be carried out to obtain the necessary information for the purpose of enforcement. The principle according to which any measures must be related to their purpose had also in other respects been applied to enforcement. In accordance with this principle, the Bailiff may only use his powers for their intended purpose. Secondly, his right to transmit information to other authorities, such as investigative authorities, was restricted by Chapter 3, section 34(g), of the Enforcement Act. This meant that the Bailiff could not disclose to prosecuting or investigative authorities information received from the debtor in an enforcement inquiry where the debtor could refuse to give such information in criminal proceedings due to a risk of criminal charges (compare and contrast Shannon v. United Kingdom, cited above, §§ 39–40) where it had been open to the investigators to forward information to the police. Thirdly, the minutes from the enforcement inquiry was a confidential document. However, creditors who had applied for enforcement had, as parties to the debt recovery procedure, the right of access to the minutes. Section 23 of the Openness of Government Activities Act, however, meant that the creditor could use such information, for example for the purpose of instituting action for the recovery of assets, but it could not be used for the purpose of bringing charges against the debtor. It must be emphasised that the applicant had not been present when the enforcement inquiry was to be made. Thus, he gave no information whatsoever and consequently, no such information could be used against him. The mere fact that the applicant failed to arrive at the Bailiff's office, thus not replying to any possible questions — whether or not allegedly having any relevance to the present examination — motivated the administrative fine (see Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002-VIII). The Supreme Court noted in its judgment that the applicant alleged that the information from the enforcement inquiry would be used against him in the criminal investigation. The Supreme Court, however, found that this would be against the law, noting that according to the Bailiff, the inquiry would solely serve the purpose defined in the Enforcement Act. There had been no use of compulsion for the purposes of obtaining information which might incriminate the applicant in pending or anticipated criminal proceedings.

The Government submitted that, contrary to the applicant's allegation, an enforcement inquiry was not carried out on request by the creditor, who could only request enforcement, but it was for the Bailiff to decide whether an enforcement inquiry was necessary. Also contrary to the applicant's allegation that the Government had referred to legislation from 2004 and therefore irrelevant to his case when stating that the Bailiff had no right to forward information to the police in order for that information to be used in the pre-trial investigation, the Government submitted that the law in force at the relevant time also restricted the use of information gathered in the enforcement procedure (section 34(g) of the Enforcement Act (Act no. 649/1999, see paragraph 27 above). As to the allegation that the Bailiff and the police had been co-operating, the applicant had not shown that the aim of the enforcement inquiry was — contrary to the law — to obtain evidence for the criminal proceedings. As to the applicant's view that the creditors could have used in the criminal proceedings information received by the Bailiff, the Government argued that the creditors had no right to use any information in such a way.

The Government took the view that the case could be distinguished from the case of Shannon v. the United Kingdom (cited above) as the facts differed. In Shannon there was an investigation into whether any person had benefited from theft or false accounting, contributing to the resources of a proscribed organisation or from contraventions of betting regulations, or tracing and confiscation of proceeds of criminal conduct, whereas in the applicant's case assets were sought for the collection of debts. In Shannon the Court noted that if the applicant had attended the interview and if he had subsequently wished to prevent the use of the information in criminal proceedings, it would have been open to the investigators to forward information to the police. This manner of proceeding was not possible under Finnish law. The Court also noted that information obtained from the applicant at an interview could have been used at a subsequent criminal trial if he had relied on evidence inconsistent with this information. This was not allowed under Finnish law either.

Finally, the Government submitted that the purpose of an enforcement inquiry was by law simply to acquire information about seizable property in order to collect debts, not to acquire evidence for the purposes of criminal proceedings. Execution presupposed that the debtor was obliged to provide the Bailiff with information concerning his assets. The Bailiff did not have the right to give any incriminating information to the police. Nor did the creditors have a right to use such information in criminal proceedings against the debtor. In no case had the debtor the right to refuse to attend the enforcement inquiry.