Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30541/96

by Hannu Olavi RÖNKÄ

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1998, the following members being present:

MM N. BRATZA, Acting President

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 February 1996

by Hannu Olavi RÖNKÄ against Finland and registered on 21 March 1996

under file No. 30541/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is Finnish citizen, born in 1969. He resides in

Oulu and is serving his prison sentence in Pelso Central Prison. Before

the Commission he is represented by Mr Matti Sarkkinen, a lawyer

practising in Oulu.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant was arrested on 24 August 1994 for the purpose of

bringing him before a court and on the basis of suspicion of having

committed offences which had to be investigated. On 25 August 1994 he

was served with an indictment covering seven offences including, among

other things, theft, hiding stolen goods and disturbance of domestic

peace. On 28 August 1994 the Oulu District Court (käräjäoikeus,

tingsrätt) decided to detain the applicant on remand pending trial. On

15 September 1994 the applicant was served with an indictment covering

six additional offences including two counts of aggravated theft.

The case was heard for the first time on 20 September 1994 before

the District Court. The applicant admitted having committed some of the

offences and denied others. Two witnesses called by the prosecutor were

heard. The case was adjourned until 4 October 1994.

On 4 October 1994 the case continued before the District Court.

The applicant and his legal counsel were present. The applicant was

charged with several additional offences. The applicant denied all the

new charges. The prosecutor called two new witnesses but neither of

them appeared for which reason the prosecutor requested that the case

be adjourned in order to hear at least one of them. The applicant

requested that the case be transferred to another Chamber of the

District Court as he had been charged with other offences and was to

be tried before that Chamber the following day. The District Court

rejected the request to join the cases as it found such a step

unnecessary having regard in particular to the fact that the applicant

was charged in the other Chamber with offences for which only fines

could be imposed and since there were several other accused involved

in that case. The case was adjourned until 10 October 1994.

On 10 October 1994 both the applicant and his legal counsel were

present at the hearing. The prosecutor and the applicant called two

witnesses each. During the hearing of the witnesses the presiding judge

denied the applicant the right to put questions to the witnesses

personally as he was legally represented in court. The applicant also

named three witnesses whom he had not been able to call to the hearing

and requested that the case be adjourned in order to hear these

witnesses on his behalf. The prosecutor objected to this because, in

his opinion, these witnesses could not add anything new to the case and

since it was likely that one of them would later be charged with the

same offences himself. On the basis of the available documents and

information the District Court rejected the applicant's request to hear

the above-mentioned three further witnesses as they could not, in the

Court's view, add anything of relevance to the case and as one of them

risked being charged with the same offences himself. The District Court

adjourned the case until 24 October 1994 on which date judgment would

be pronounced.

In its judgment of 24 October 1994 the District Court convicted

the applicant of nineteen different offences and sentenced him to one

year and eight months' imprisonment.

The applicant appealed to the Rovaniemi Court of Appeal

(hovioikeus, hovrätt) stating, among other things, that his right to

examine and have examined witnesses against him and to obtain

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him was violated. He maintained that

the District Court had on 10 October 1994 rejected his request to call

certain witnesses even though their statements, in the applicant's

opinion, would have been important to his defence. The applicant also

referred to the fact that the presiding judge had denied him the right

to put questions to the witnesses personally.

On 14 March 1995 the Court of Appeal confirmed the refusal not

to hear further witnesses as they could not, also in the opinion of the

Court of Appeal, add anything of relevance to the case. In its judgment

of the same date the Court of Appeal acquitted the applicant of two

offences and upheld the conviction as regards the others. The Court of

Appeal reduced the sentence to one year and four months' imprisonment.

The applicant requested leave to appeal to the Supreme Court

referring to the same points as those raised in the Court of Appeal.

On 16 August 1995 the Supreme Court (korkein oikeus, högsta domstolen)

refused him leave to appeal.

COMPLAINTS

1. The applicant complains that he was not afforded a fair trial as

the charges against him were not heard before the same Chamber of the

Court in one trial. He invokes Article 6 para. 1 of the Convention.

2. The applicant also complains that his right to examine or have

examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as

witnesses against him was violated as he was not allowed to put

questions to the witnesses himself and as his request to adjourn the

case in order to call further witnesses on his behalf was rejected. He

invokes Article 6 para. 3 (d) of the Convention.

THE LAW

1. The applicant complains that he did not have a fair trial and

refers in particular to the fact that his cases were not heard before

the same Chamber of the District Court in one trial. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention which in its relevant

part reads as follows:

" In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law. ..."

The question whether a trial is in conformity with the

requirements of Article 6 para. 1 (Art. 6-1) must normally be

considered on the basis of an examination of the proceedings as a whole

(cf. for example No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 and No.

12002/86, Dec. 8.3.88, D.R. 55, p. 218). It is, however, not the

Commission's task to express itself as to the appropriateness of a

procedural decision taken when motivated by a proper and efficient use

of the available resources of the legal system. A request to have

criminal cases joined is not as such guaranteed by the Convention and

as far as the Convention issue is concerned, i.e. the right to fair

trial, the Commission considers that the decision of the trial court

not to join the cases against the applicant did not in the present

circumstances disclose any appearance of a violation of Article 6 para.

1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains that his right to examine or have

examined witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as

witnesses against him was violated as his request to adjourn the case

in order to call further witnesses on his behalf was rejected and as

he was not allowed to put questions to the witnesses himself. He

invokes Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which

reads as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;"

As regards the applicant's complaint about the hearing of

additional witnesses, the Commission recalls that, as a general rule,

it is for the national courts to assess the evidence before them as

well as the relevance of the evidence which the defendants seek to

adduce. More specifically, Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention leaves it to them, again as a general rule, to assess

whether it is appropriate to call witnesses and it does not require the

attendance and examination of every witness on the accused's behalf

(cf. Eur. Court HR, Vidal v. Belgium judgment of 28 October 1992,

Series A no. 235, pp. 32-33, para. 33 and No. 25062/94, Dec. 18.10.95,

D.R. 83-A, p. 77 and No. 25096/94, Dec. 6.9.95, D.R. 82-A, p. 117).

In the present case the Commission notes that District Court had

heard six witnesses and the request to hear further witnesses was made

thereafter. The District Court found that the witnesses in question

could not in addition to the evidence already available add anything

of relevance to the case. The Court of Appeal accepted this, and the

Supreme Court did not grant leave to appeal.

In these circumstances, the Commission finds no sufficient

grounds to conclude that in the circumstances of the present case the

refusal to take further evidence was incompatible with Article 6

para. 3 (d) (Art. 6-3-d). In particular the Commission has found no

elements which would indicate that the trial courts in the present case

went beyond their discretion to refuse to take evidence when refusing

to hear the witnesses concerned.

As regards the complaint concerning the examination of the

witnesses heard during the trial the Commission recalls that it is in

principle essential that an accused is present when witnesses are being

heard in a case against him (cf. for example No. 8395/78,

Dec. 16.12.81, D. R. 27, p. 50). However, this does not mean that the

accused has an absolute right to put questions to the witness

personally, especially if the accused is legally represented, as long

as the accused has a right to cross-examine the witness at least

through his legal counsel.

In the present case the Commission recalls that the applicant and

his legal counsel were present in court. Nothing indicates that the

applicant was prevented from advising or instructing counsel as to how

questions should be put to the witnesses and nothing indicates that

counsel was in any way prevented from cross-examining the witnesses

concerned.

In these circumstances the Commission is satisfied that the

interests of the defence during the examination of witnesses concerned

could be safeguarded by the lawyer just as well as by the applicant

himself. It follows that this aspect of the case does not disclose any

appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention either.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

Menu

RÖNKÄ v. FINLAND

RÖNKÄ v. FINLAND

LEXI