Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31043/96

by Seppo Olavi LEHTO

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 20 February 1996

by Seppo Olavi LEHTO against Finland and registered on 18 April 1996

under file No. 31043/96;

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 a Finnish citizen, born in 1962. He resides in

Tampere and is a teacher of history by profession.

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

summarised as follows.

On 9 May 1994 the applicant got into a fight with another person

in front of his home. The police were called and an investigation

commenced. The applicant submits that he complained about the behaviour

of the police to the public prosecutor. The outcome thereof remains

unknown.

Following the above incident the applicant was charged with

assault. The case commenced in the Tampere District Court

(käräjäoikeus, tingsrätt). On 17 November 1994 the case was, however,

adjourned until 22 December 1994 as the applicant failed to appear due

to illness.

On 9 December 1994 the applicant requested in writing the

District Court to grant him a cost-free trial and to appoint a counsel

as he did not have sufficient means to pay for such assistance. The

District Court granted the cost-free trial but rejected the request for

appointment of counsel as in its view the interests of justice did not

require it due to the fact that the matter was of a rather simple

character and appeared to involve only fines in case the applicant was

convicted.

On 13 December 1994 the applicant appealed against the above

decision to the Turku Court of Appeal (hovioikeus, hovrätt) claiming

that counsel should be appointed for him on the basis of the Act on

Cost-free Trials (laki maksuttomasta oikeudenkäynnistä, lag om fri

rättegång) as he could not attend to his interests before the court

without such assistance.

While the question of free legal assistance was pending before

the Court of Appeal the case against the applicant continued in the

District Court on 22 December 1994. The following was mentioned in the

minutes of the court:

(Translation)

"[The applicant] arrived at the court at 9.12 hours making

nazi salutes and shouting slogans with a children's potty

in his hand. [The applicant] put the potty on the floor of

the court room and asked the other party to sit on it.

The potty was removed from the court room by order of the

presiding judge.

It was noted that [the applicant] made so many remarks that

it was impossible to deal with the case. The presiding

judge requested [the applicant] to keep quiet and to accept

the presiding judge's instructions as to who was allowed to

speak. [The applicant] agreed to that.

The prosecutor read out the charges.

It was noted that during the reading of the

charges [the applicant] put his fingers in his

ears refusing to listen to the charges."

During the hearing the applicant submitted that he would remain

silent as he was not legally represented and as he was not prepared to

defend himself without such assistance. He requested that the case be

adjourned until the question of free legal assistance had been finally

determined by the Court of Appeal. The request was rejected as the

applicant had not submitted any reasons why the trial should be

adjourned until the question of free legal aid had been determined by

the Court of Appeal. The District Court also stated that it was not

competent to decide the question of free legal assistance as it was now

pending before a higher instance. The hearing continued with the

hearing of the victim and two witnesses one of whom was a police

officer.

On 22 December 1994 the District Court convicted the applicant

of assault on the basis of an evaluation of the available evidence and

he was sentenced to pay a fine totalling FIM 600. The applicant was

also ordered to pay compensation in the amount of FIM 1,250 to the

victim.

The applicant appealed against the judgment to the Court of

Appeal maintaining that he had been wrongly convicted. He also claimed

that the presiding judge had been partial as he had wrongly entered in

the records that the applicant had "made nazi salutes and shouted

slogans". The applicant furthermore complained that as the question of

free legal assistance had not been determined he had not had adequate

time and facilities to prepare his defence. Finally, he complained that

one of the witnesses, the police officer, had shown bias against him.

In its judgment on 26 April 1995 the Court of Appeal refused the

applicant's request for appointment of counsel and upheld the District

Court's judgment and its reasoning.

On 6 September 1995 the Supreme Court (korkein oikeus, högsta

domstolen) refused leave to appeal.

COMPLAINTS

1. The applicant complains that he has been wrongly convicted and

sentenced by a partial tribunal. He invokes in this respect Article 6

para. 1 of the Convention.

2. Furthermore, the applicant complains of the fact that he was

refused free legal assistance and invokes Article 6 para. 3 (c) of the

Convention.

3. Finally, under Article 6 para. 3 (b) of the Convention, the

applicant complains that he did not have adequate time and facilities

for the preparation of his defence.

THE LAW

1. The applicant complains that he has been wrongly convicted and

sentenced by a partial tribunal. He invokes in this respect Article 6

para. 1 (Art. 6-1) of the Convention which, in so far as relevant,

reads as follows:

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

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law. ..."

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to the established

case-law of the Convention organs (cf. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p. 25, para.

45).

It is true that in this case the applicant also complains that

the District Court was partial as the judge had allegedly entered

biased remarks of his behaviour in the records of the court.

The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge in a given case, and also

according to an objective test, that is ascertaining whether the judge

offered guarantees sufficient to exclude any legitimate doubt in this

respect (cf. e.g. No. 15975/90, Dec. 1.7.91, D.R. 71, p. 245 and Eur.

Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no.

154, p. 21, para. 46).

The Commission considers that the applicant has not submitted

anything which could cast doubt on the objective impartiality of the

District Court judge.

As to the subjective test, the personal impartiality of a judge

must be presumed until there is a proof to the contrary (cf. e.g.

No. 17722/91, Dec. 8.4.91, D.R. 69, p. 345).

In the present case the applicant has in no way shown that the

judge concerned acted with personal bias. The notes entered in the

court records were based on the events of the day and not in order to

express personal opinions of the judge. The mere fact that a judge has

entered the actual events in the court records cannot in itself justify

fears as to his or her impartiality. In the circumstances of the

present case, the Commission finds that the act of the judge was not

capable of giving rise to doubt as to his impartiality and that the

applicant's fear cannot be considered to be justified.

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 of the fact that he was

refused free legal assistance. He invokes Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention which reads as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal assistance

of his own choosing or, if he has not sufficient means to

pay for legal assistance, to be given it free when the

interests of justice so require; ..."

The Commission recalls that the right to free legal assistance

guaranteed by Article 6 para. 3 (c) (Art. 6-3-c) is subject to two

conditions; that the individual does not have sufficient means to pay

for legal assistance and that the interests of justice require it. The

Commission proceeds on the assumption that the first condition was

satisfied in the present case. The only issue is whether the interests

of justice required that counsel be appointed for the applicant in the

proceedings before the District Court.

When determining whether the interests of justice require legal

representation, the Commission must examine each case on its facts.

While the likelihood of success and the availability of legal

assistance are significant factors to be taken into account, they are

not the sole criteria. Other factors in assessing the requirements of

the interests of justice include the importance of what is at stake for

the applicant, in particular the severity of the likely sentence, as

well as the personal ability of the applicant and the nature of the

proceedings, e.g. complexity or importance of the issues or procedures

involved (cf. e.g. No. 13572/88, Dec. 1.3.91, D.R. 69, p. 198 and Eur.

Court HR, Boner v. the United Kingdom judgment of 28 October 1994,

Series A no. 300-B, p. 75, para. 41).

The Commission notes that the applicant's request for free legal

assistance in the form of appointment of a counsel was refused because

the criminal proceedings in the matter were found to be rather simple

and as the applicant was expected only to be sentenced to a fine if

convicted.

The Commission recalls that the main issue in the case was

whether the applicant had hit the victim and whether he had caused

damage to him. This depended on the statements of the witnesses. Three

witnesses were heard and the Commission does not find it established

that their examination was particularly difficult.

As regards the severity of sentence, the Commission notes that

the District Court only imposed a fine amounting to FIM 600 and ordered

the applicant to pay compensation in the amount of FIM 1,250 to the

victim.

As regards the applicant's ability to defend himself, the

Commission recalls that the applicant was given every opportunity by

the trial judge to examine witnesses against him and to make statements

on his own behalf. He decided, however, not to avail himself of this

opportunity.

As regards finally the nature of the proceedings, the Commission

notes that the legal question as to whether or not the applicant had

committed assault, does not appear to have been of a particularly

complex nature.

In the these circumstances the Commission finds the complaint

under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention to be

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Finally, under Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention, the applicant complains that he did not have adequate time

and facilities for the preparation of his defence. Article 6 para. 3

(b) (Art. 6-3-b) of the Convention reads as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the preparation

of his defence; ..."

The applicant submits that since free legal assistance was

refused he could not properly prepare his defence.

The Commission recalls from above that in the circumstances of

the present case the interests of justice did not require that free

legal assistance be granted to the applicant. The Commission has not

found any other circumstances which could lead to the conclusion that

the applicant did not have adequate time and facilities for his

defence.

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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO N. BRATZA

Secretary Acting President

to the First Chamber of the First Chamber

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LEHTO v. FINLAND

LEHTO v. FINLAND

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