CASE OF RANINEN v. FINLAND
(152/1996/771/972)
JUDGMENT
STRASBOURG
16 December 1997
The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.
1
List of Agents
Belgium: Etablissements Emile Bruylant (rue de la Régence 67,
B-1000 Bruxelles)
Luxembourg: Librairie Promoculture (14, rue Duchscher
(place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)
The Netherlands: B.V. Juridische Boekhandel & Antiquariaat
A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage)
RANINEN JUDGMENT OF 16 DECEMBER 19971
SUMMARY[1]
Judgment delivered by a Chamber
Finland – arrest, detention and handcuffing of military conscript objecting to military and substitute service
I.GOVERNMENT’S PRELIMINARY OBJECTION (non-exhaustion of domestic remedies)
Government had not demonstrated that either a criminal prosecution or an action for damages would in specific circumstances have offered reasonable prospects of success.
Conclusion: objection (six votes to three).
II.ARTICLE 5 OF THE CONVENTION
A.Article 5 § 1
Having regard to Ombudsman’s findings, applicant’s arrest and detention during his transportation by military police from prison to the barracks were to be considered contrary to national law and, accordingly, were not “lawful” under Article 5 § 1 – not established that he was unlawfully deprived of his liberty following his arrival at the barracks in breach of that provision.
Conclusion: violation (unanimously).
B.Article 5 § 2
Having regard to above finding that applicant’s arrest failed to comply with Finnish law and thus gave rise to a breach of paragraph 1 of Article 5, not necessary to consider complaint under paragraph 2.
Conclusion: not necessary to consider complaint (unanimously).
III.ARTICLE 3 OF THE CONVENTION
Principles in Court’s case-law restated – as regards kind of treatment in question, handcuffing did not normally give rise to an issue under Article 3 where measure imposed in connection with lawful arrest or detention and did not entail use of force, or public exposure, exceeding what was reasonably considered necessary in circumstances – in this regard, it was of importance for instance whether reason to believe that person concerned would resist arrest or abscond, cause injury or damage or suppress evidence.
Handcuffing of the applicant had not been made necessary by his conduct – apart from fact that measure had itself been unjustified, it had been imposed in context of unlawful arrest and detention – in addition, he had, albeit only briefly, been visible to the public on entering military police vehicle outside prison gate and had felt humiliated by appearing handcuffed in front of members of his support group – these considerations were no doubt relevant for the purposes of determining whether the contested treatment was “degrading” within meaning of Article 3.
However, Court not convinced that incident had adversely affected applicant’s mental state – nothing in the evidence suggested that causal link existed between impugned treatment and his “undefined psychosocial problem” – allegation that the handcuffing aimed at debasing or humiliating him not made out – finally, not contended that handcuffing had affected him physically – not established that treatment in issue attained minimum level of severity required by Article 3.
Conclusion: no violation (unanimously).
IV.ARTICLE 8 OF THE CONVENTION
According to Court’s case-law, notion of “private life” was broad and not susceptible to exhaustive definition; it could, depending on the circumstances, cover the moral and physical integrity of the person – these aspects of the concept extended to situations of deprivation of liberty – not excluded that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which did not attain level of severity required by Article 3.
Applicant’s complaint under Article 8 based on same facts as that under Article 3, which the Court had considered and found not established in essential aspects – insufficient elements to find that treatment complained of entailed such adverse effects on his physical or moral integrity as to constitute interference with respect for private life as guaranteed by Article 8.
Conclusion: no violation (seven votes to two).
V.ARTICLE 50 OF THE CONVENTION
A.Non-pecuniary damage
Compensation awarded on equitable basis (unanimously).
B.Costs and expenses
Awarded in part (unanimously).
COURT’S CASE-LAW REFERRED TO
18.1.1978, Ireland v. the United Kingdom; 25.4.1978, Tyrer v. the United Kingdom; 10.2.1983, Albert and Le Compte v. Belgium; 26.3.1985, X and Y v. the Netherlands; 16.12.1992, Niemietz v. Germany; 25.3.1993, Costello-Roberts v. the United Kingdom; 25.2.1997, Z v. Finland; 9.10.1997, Andronicou and Constantinou v. Cyprus
RANINEN JUDGMENT OF 16 DECEMBER 19971
In the case of Raninen v. Finland[2],
The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rulesof Court B[3], as a Chamber composed of the following judges:
MrR. Bernhardt, President,
MrThórVilhjálmsson,
MrI. Foighel,
MrR. Pekkanen,
MrA.N. Loizou,
MrJ.M.Morenilla,
MrM.A. Lopes Rocha,
MrJ. Makarczyk,
MrK. Jungwiert,
and also of MrH. Petzold, Registrar, and MrP.J. Mahoney, Deputy Registrar,
Having deliberated in private on 30 August and 26 November 1997,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1.The case was referred to the Court by the European Commission of Human Rights (“the Commission”) and by the Government of the Republic of Finland (“the Government”) on 4December 1996 and 25February 1997 respectively, within the three-month period laid down by Article32 §1 and Article47 of the Convention. It originated in an application (no.20972/92) against Finland lodged with the Commission under Article25 by a Finnish citizen, MrKaj Raninen, on 11November 1992.
The Commission’s request referred to Articles44 and 48 and to the declaration whereby Finland recognised the compulsory jurisdiction of the Court (Article46). The Government’s application referred to Articles44 and 48. The object of the request and of the application was to obtain a
decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles3, 5 and 8 of the Convention.
2.In response to the enquiry made in accordance with Rule35 §3 (d) of Rulesof Court B, the applicant designated the lawyers who would represent him (Rule31).
3.The Chamber to be constituted included ex officio MrR. Pekkanen, the elected judge of Finnish nationality (Article43 of the Convention), and MrR. Bernhardt, the Vice-President of the Court (Rule21 §4 (b)). On 20January 1997, in the presence of the Registrar, the President of the Court, MrR. Ryssdal drew by lot the names of the other seven members, namely MrThór Vilhjálmsson, MrI. Foighel, MrA.N. Loizou, MrJ.M.Morenilla, MrM.A. Lopes Rocha, MrJ. Makarczyk and MrK. Jungwiert (Article43 in fine of the Convention and Rule21 §5).
4.As President of the Chamber (Rule21 §6), MrBernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules39 §1 and 40). Pursuant to the order made in consequence on 10March 1997, the Registrar received the applicant’s memorial on 9June 1997 and the Government’s memorial on 10June 1997. In a letter of 15July 1997, the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing.
5.On 25 June 1997 the Commission produced a document, as requested by the Registrar on the President’s instructions.
6.In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27August 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a)for the Government
MrH. Rotkirch, Ambassador, Director General for Legal
Affairs, Ministry for Foreign Affairs,Agent,
MrA. Kosonen, Head of Unit, Legal Department,
Ministry for Foreign Affairs,co-Agent,
MrS. Kipinoinen, Senior Governmental Secretary,
Ministry of Defence,Adviser;
(b)for the Commission
MrM.A. Nowicki, Delegate;
(c)for the applicant
MrJ. Kortteinen, Assistant Professor of Constitutional Law,
University of Helsinki,
MrsM.Laine, former lawyer of the Union of
Conscientious Objectors,Counsel.
The Court heard addresses by Mr Rotkirch, Mr Nowicki and MrKortteinen.
AS TO THE FACTS
I.Particular circumstances of the case
A.Background to the case
7.The applicant is a Finnish national who was born in 1967 and resides in Helsinki.
In 1986 he was called up for military service but his duty to report for service was suspended until 20March 1992 because of his studies. Prior to this date he declared in writing to the army that he objected to performing any kind of military or substitute civilian service.
On 7April 1992 he presented himself at the Army Headquarters (pääesikunta, huvudstaben) and submitted a petition against military service. After having reiterated his petition the following day he was arrested on suspicion of having avoided service. He was eventually brought to the barracks of the Pori Brigade (Porin Prikaati – “Pori barracks”) at Säkylä, where he had been due to report on 20March 1992. On his renewed objection to carrying out military duties his arrest was prolonged on 9 April.
8.On 11 April 1992 the District Court (kihlakunnanoikeus, häradsrätten) of Eura ordered the applicant’s detention on remand in the County Prison of Turku. On 24 April the District Court convicted and sentenced him to imprisonment (suspended) for having avoided military service from 20March to 8 April and for having committed an offence in service on 9April (Chapter45, Articles4 and 15, of the 1889 Penal Code (rikoslaki, strafflag 39/1889 as amended by Act no.792/89)).
The above offences applied to conscripts like the applicant who refused to perform either military or substitute civilian service. Punishment imposed for such refusal did not relieve the conscript from his duty to serve, which
applied until the end of the year of his thirtieth birthday (section23, subsection2 (3) and section15 of the 1950 Military Service Act).
9.Immediately upon his release on 24April 1992, military staff brought the applicant back to the Pori barracks. Subsequently, as he persisted in objecting to military service, he was re-arrested and placed in detention on remand.
On 12 May the District Court convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date.
10.On his release the same day, military personnel brought the applicant back to the Pori barracks. As he continued to object to carrying out military service he was re-arrested and detained on remand.
On 29May 1992 the District Court convicted the applicant of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date.
11.After his release on the same date he was again brought back to the Pori barracks by the military police, where he was re-arrested as he persisted in objecting to military service.
12.On 2June 1992 the applicant started to serve his sentences at the County Prison. When released on parole on 9 June he was again taken to the Pori barracks by the military police, but since he continued to refuse military service he was re-arrested and placed in detention on remand.
13.On 18 June the District Court convicted the applicant of two offences in service and sentenced him to further imprisonment. The sentence was to be served at a later date. The District Court in addition revoked the order to release the applicant on parole.
B.Transportation of the applicant to the Pori barracks on 18June 1992
14.After the court hearing on 18June 1992, the applicant was, as had occurred on previous occasions, taken back to the County Prison before being released.
In the prisoners’ check-out room, a military police squad consisting of conscripts and headed by R., a corporal, waited for the applicant. In the prison courtyard he was handcuffed and informed of his arrest. He was subsequently taken to the military police vehicle outside the prison gate. Members of his support group, who had been waiting for him outside the gate, were photographing and videotaping the incident.
He was then taken back to the Pori barracks at Säkylä, situated 100–150 kilometres from Turku, a journey which normally takes approximately two hours by car.
Following his arrival at the Pori barracks, the applicant was taken to the military hospital at the compound. He was released from his handcuffs in the hospital’s entry hall.
15.According to the applicant, the measures taken by the military police had all been against his will. In the Government’s submission, he had consented to being transported to the military hospital.
16.The applicant did not undergo any medical examination at the military hospital but was subjected to further questioning by army personnel on 19June 1992, during which he renewed his objection to military service. As a result he was re-arrested at 8.05 a.m. on the same date.
C.Further convictions and detention of the applicant and discharge
17.On 22June 1992 the District Court again ordered his detention on remand in the County Prison. On 26 June he started serving the aggregated prison sentence imposed by the District Court on 18 June (see paragraph13 above).
On 29 June the applicant was convicted of an offence committed in service on 19June 1992 and sentenced to further imprisonment. In its judgment the District Court stated that he had been deprived of his liberty as from 19June.
18.On 20August 1992 the applicant was released from prison on parole. As he continued to object to military service he was twice detained on remand, in August and September, and was convicted of further offences in service and sentenced to further imprisonment.
On 5October 1992 the applicant was discharged from his military service for one year.
D.The applicant’s petition to the Parliamentary Ombudsman and the ensuing proceedings
19.On 16 February 1993 the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman; “the Ombudsman”), complaining in particular about the deprivation of his liberty from 18 to 19 June 1992 and the related handcuffing. He emphasised that at no moment had he attempted to escape from the military police or otherwise shown any intention of doing so. He had also been handcuffed on 11 April and 2June 1992 while being transported to the County Prison after the District Court’s hearings.
In his petition the applicant also submitted that, on his arrival at the Brigade on 18June 1992, R. had asked him whether he would agree to go to the military hospital. The applicant had then restated his objection to performing any kind of service but he had not consented to going to the
hospital, as was shown by the fact that he had been handcuffed until his arrival there. At any rate, he had not acted in a way which could lead anyone to believe that he had wished to receive hospital care.
20.Heard as a suspect at the Ombudsman’s request, R. stated that he had been instructed by the Legal Officer of the Pori barracks to bring the applicant back to the compound. After the applicant had been released in the prison courtyard, R. had ordered the military police to apprehend him. According to the training provided to members of military police squads, a person who was to be arrested was to be informed thereof and was also to be handcuffed. On the applicant’s return to the Pori barracks, R. had been instructed by the Duty Officer to ask the applicant whether he would agree to take up his military service. As he objected he had, with his own consent, been brought to the military hospital. As far as R. could remember, the applicant had been released from his manacles in the hospital yard.
21.The army authority in the Pori Brigade told the Ombudsman that the purpose of the applicant’s apprehension had been to ensure that he would remain in the hands of the military authorities, given that he had been ordered to take up his service at that compound. The military police had not been given any instructions concerning his transportation in handcuffs. Nor did the situation as a whole seem to have required such a measure, considering that his arrest had not been ordered and, as on previous occasions, he was only to be returned to the Pori barracks. In view of his repeated convictions for military offences, R. had nevertheless considered that the applicant’s handcuffing was necessary in order to ensure his return to the Pori barracks.
22.The Army Headquarters made the following observations to the Ombudsman. The applicant’s arrest had taken place immediately on his release by the prison authorities. There was no evidence at that time that he continued to object to performing military service or to returning to his military compound with the military police. The measures ordered by R. appeared to have been based on the applicant’s earlier repeated objections to performing any kind of service and the likelihood that this would continue. Moreover, his support group had been disturbing R. during the incident.
The Army Headquarters nevertheless conceded that, on the basis of the evidence available, there had been no acceptable grounds for arresting the applicant, which measure had stemmed from the fact that R. had made an incorrect assessment of the situation in combination with the surrounding circumstances. Nor had there been any justification for handcuffing the applicant. According to the relevant permanent instructions, manacles could be used temporarily in order to calm down a person behaving violently who was to remain in the hands of the authorities or if there was a specific reason for suspecting that he would escape. Although the applicant had, on several
occasions, committed punishable acts and his support group had attended his release from the County Prison, it had not been likely that he would escape on that occasion.
23.In his decision of 20 May 1994 the Ombudsman noted that the military authorities had had no reason to fear that the applicant would attempt to escape. On previous occasions the latter had in fact presented himself voluntarily to them. The Ombudsman considered that the applicant’s arrest on 18June 1992 had lacked a legal basis since, prior to the measure, he had not been asked whether he would persist in his refusal to perform military or substitute service. The Ombudsman furthermore stated:
“There were no objectively justifiable grounds for putting Raninen in handcuffs. Apparently R. proceeded in this situation as he had been trained to do.
When evaluating the actions of R., one must take into consideration his inexperience and the rather general nature of the directions which he had received from his brigade. R. himself believed that he acted in accordance with orders. A more experienced military person should have been assigned to fetch Raninen from the County Prison. It is not even claimed that R.’s behaviour was inappropriate in any other respect. In my opinion, and taking into consideration the circumstances, this action does not call for measures to be taken against R. by the Ombudsman.”