Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28941/95

by Christian LUPANDER

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 8 September 1995

by Christian Lupander against Finland and registered on 18 October 1995

under file No. 28941/95;

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 1961 and resident in

Helsinki, Finland. When lodging the application he was serving a prison

sentence in the Vaasa County Prison (lääninvankila, länsfängelset). The

applicant is represented before the Commission by Mr Heikki Salo, a

lawyer practising in Helsinki.

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

summarised as follows.

The Public Prosecutor indicted the applicant before the Helsinki

City Court (raastuvanoikeus, rådstuvurätten) on charges of, inter alia,

two counts of aggravated embezzlement committed on 28 March 1989 and

15 January 1990, respectively, and two counts of aggravated fraud

committed on 13 December 1989 and 13 March 1990.

According to the charges of aggravated embezzlement, the

applicant and a co-defendant, in order to obtain financial benefit for

themselves, had used unlawfully the funds they had acquired on the

basis of two sets of contracts with a finance company concerning

certain stock trades, in both cases to the amount of approximately

5,000,000 Finnish marks (FIM), and thereby failed to fulfil their

liability of account as required by the contracts. The Prosecutor

considered that the offences were aggravated in particular because

large amounts of money were involved.

Furthermore, according to the charges of aggravated fraud, the

applicant and a co-defendant had by giving false information deceived

a finance company into financing purchases of non-existing stocks, in

both cases to the amount of FIM 5,000,000, in order to obtain

unjustified financial benefit for themselves or a third party. In doing

so they had caused the company a loss equal to this amount since the

financing was unsecured. The Prosecutor considered that the offences

were aggravated in particular because considerable financial benefit

had been sought.

Chapter 29, section 1 of the Penal Code (rikoslaki, strafflag

39/1889), as in force at the time the acts were committed, provided as

follows:

(Translation)

"A person who appropriates the movable property of

another which is in the possession of the offender shall be

sentenced for embezzlement to imprisonment for a maximum

period of two years or to a fine.

The same applies to a person, who has received funds

on account by way of a commission or in a similar manner,

and who unjustifiably uses the said funds or funds which

have taken their place in order to obtain financial benefit

for himself and in this way causes a situation in which the

liability of account is not fulfilled."

Chapter 29, section 2 of the Penal Code, as in force at the

above-mentioned time, read as follows: (Translation)

"If embezzlement is committed by using faulty accounts

prepared with a view to perpetrating this offence or by

taking advantage of the offender's responsible position or

if the act is directed at very valuable property or a large

amount of funds and the embezzlement is to be deemed

aggravated in the above-mentioned or other cases having

regard to the circumstances which led to the crime and

appear thereof as a whole, the offender shall be sentenced

for aggravated embezzlement ..."

The above-mentioned provisions were amended by Act No. 769/1990

which entered into force on 1 January 1991. Chapter 29, section 1 of

the Penal Code was replaced by chapter 28, section 4, which, as far as

relevant, reads as follows:

(Translation)

"Embezzlement. A person who appropriates assets or other

movable property of which he is in possession shall be

sentenced for embezzlement to a fine or imprisonment for a

maximum period of one year and six months.

...

A person who has received funds on account through a

commission or in a similar manner, and who unjustifiably

causes a situation in which the liability of account is not

fulfilled at the time agreed or otherwise required, by

using the said funds or funds which have taken their place

or by otherwise acting in a similar manner, shall also be

convicted of embezzlement."

The above-mentioned chapter 29, section 2 of the Penal Code was

replaced by chapter 28, section 5 which, as far as relevant, provides

as follows:

(Translation)

"Aggravated embezzlement. If in the embezzlement

1) the object is very valuable property or a large amount

of assets,

2) particularly significant loss is caused to the victim of

the offence, in view of the victim's circumstances, or

3) the offender takes advantage of his particularly

responsible position

and the embezzlement, also when assessed as a whole, is to

be deemed aggravated, the offender shall be sentenced for

aggravated embezzlement to imprisonment for a minimum

period of four months and a maximum period of four years."

Chapter 36, section 1 of the Penal Code, as in force at the time

the acts were committed, read in so far as relevant as follows:

(Translation)

"A person who, in order to obtain unlawful material benefit

for himself or another person, causes another to suffer

loss of property or pecuniary loss by presenting misleading

information, or by distorting or concealing facts, brings

about or maintains an error... shall be sentenced for fraud

to a fine or imprisonment for a maximum period

of two years, or, if the circumstances are

particularly aggravating, ... for a maximum

period of four years."

The above-mentioned provisions concerning fraud were also amended

by Act No. 769/1990. Chapter 36, section 1, subsection 1, as amended,

reads as follows:

(Translation)

"Fraud. A person, who in order to obtain unlawful financial

benefit for himself or another person or in order to harm

another, deceives another or takes advantage of an error of

another so as to have this person do something or refrain

from doing something and in this way causes financial loss

to the deceived person or to the person over whose benefits

this person is able to dispose, shall be sentenced for

fraud to a fine or imprisonment for a maximum period of two

years."

Chapter 36, section 2 of the Penal Code, as in force at the time

the applicant was convicted, provides for aggravated fraud, in so far

as relevant, as follows:

(Translation)

"Aggravated fraud. If the fraud

1) involves the seeking of considerable benefit, [or]

2) causes considerable or particularly significant loss,

...

and the fraud, also when assessed as a whole, is to be

deemed aggravated, the offender shall be sentenced for

aggravated fraud to imprisonment for a minimum period of

four months and a maximum period of four years."

After the proceedings had started the Prosecutor appeared in a

television programme where he was interviewed in connection with the

domestic proceedings in the present case. The Prosecutor commented on

what had been discovered in the police investigation and with what the

applicant was charged.

In the course of the proceedings the City Court heard the victims

of the crimes and the defendants as regards the above-mentioned

charges. The applicant pleaded not guilty claiming in particular, as

regards the two counts of aggravated embezzlement, that he had later

fulfilled the liability of account and, as regards the two counts of

aggravated fraud, that the acts had not caused material loss as

required by the relevant provision. He contended that these acts did

not constitute criminal offences at the time they were committed and

that, therefore, the law in force at that time ought to be applied.

Furthermore, he considered that the fairness of the trial had been

affected by the Prosecutor's television appearance.

On 18 October 1993 the City Court pronounced judgment. The City

Court found it established, inter alia, that as described in the

charges, the applicant had broken the contracts he had made concerning

the financing of the stock trades and used unlawfully the relevant

funds thereby failing to fulfil the terms of the contracts as regards

rendering of accounts in accordance with them. In doing so he had

obtained financial benefit. As regards one of the acts the City Court

considered that both the law in force at the time the acts were

committed and the law in force at the time judgment was pronounced were

applicable, the latter being less severe.

Furthermore, the City Court found that the applicant, as

described in the charges in order to gain unlawful financial benefit

for himself and another person, had committed fraud and that both the

law in force at the time the acts were committed and the law in force

at the time judgment was pronounced were applicable, the latter being

less severe.

Applying the law in force at the time judgment was rendered, the

City Court convicted the applicant of, inter alia, two counts of

aggravated embezzlement and two counts of aggravated fraud and

sentenced him to a total of two years and three months' imprisonment

and ordered him to pay damages.

On 16 November 1993 the applicant, among others, appealed to the

Helsinki Court of Appeal (hovioikeus, hovrätten) renewing his earlier

submissions and requesting, inter alia, that he be acquitted or his

sentence be reduced. He also requested that an oral hearing be held in

the Court of Appeal.

On 8 September 1994 the Court of Appeal upheld the judgment of

the City Court as far as relevant without holding an oral hearing.

Subsequently, the applicant requested access to the memorandum

of the Referendary of the Court of Appeal. He was granted access only

to the public part thereof but denied access to the part which is

regarded as a part of the deliberations in camera of the Court of

Appeal.

On 6 November 1994 the applicant requested leave to appeal to the

Supreme Court (korkein oikeus, högsta domstolen) referring, inter alia,

to the choice of applicable law and the influence of the Prosecutor's

above-mentioned television interview about the trial. The applicant

demanded acquittal, reduction of sentence or a return of the case to

the Court of Appeal.

On 9 March 1995 the Supreme Court refused the applicant leave to

appeal.

COMPLAINTS

1. The applicant complains that he was denied a fair trial. He

maintains that the courts failed to elaborate sufficient reasoning for

their judgments. He alleges that it does not appear from the judgments

on what grounds the courts considered that his acts fulfilled the

definitions of aggravated embezzlement and fraud committed under

particularly aggravating circumstances as prescribed in the relevant

national provisions in force at the time the acts were committed. The

applicant also complains that the Court of Appeal refused him access

to that part of the Referendary's memorandum which is regarded as a

part of its deliberations in camera and that the refusal on its part

prevented him from knowing the reasons for the judgment of the Court

of Appeal. The applicant invokes Article 6 of the Convention. 2.

Furthermore, the applicant complains that his right to be presumed

innocent was violated. He maintains that the courts failed to apply the

rule of in dubio pro reo and that the Prosecutor after the first

session in a television programme took a stance to the applicant's

guilt even as regards acts for which he was never indicted. He contends

that the courts failed to take measures as regards the Prosecutor's

behaviour. In this connection the applicant invokes Article 6 para. 2

of the Convention.

3. The applicant also complains that he was held guilty of

aggravated embezzlement and aggravated fraud on account of acts which

did not constitute criminal offences under national law in force at the

time he was convicted. He claims that the acts which were considered

to be aggravated frauds did not cause material loss. He contends that

the courts applied the principle of the more lenient law to his

detriment. The applicant invokes Article 7 of the Convention.

THE LAW

1. The applicant complains that he was denied a fair trial. He

claims that the courts failed to elaborate sufficient reasoning. The

applicant also complains that the Court of Appeal refused him access

to part of the Referendary's memorandum. He invokes Article 6 (Art. 6)

of the Convention which reads as far as relevant:

"1. In the determination of his civil rights and

obligations or 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. ..."

In the applicant's opinion, the courts were obliged to determine

whether the provisions in force at the time the acts were committed

applied to them in order to be able to conclude that the less severe

provisions were the ones in force at the time the judgment was

rendered. He alleges that, therefore, it ought to appear from the

reasoning on what grounds the courts based their opinion that the acts

constituted the offences at issue even though the interpretation

allegedly deviated from the established interpretation.

The Commission recognises that failure to give reasons for a

judgment may raise issues regarding the right to a fair hearing as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. According

to the Commission's case-law the effect of this provision is, inter

alia, to place the "tribunal" under a duty to conduct a proper

examination of the submissions, arguments and evidence adduced by the

parties (Eur. Court HR, Kraska v. Switzerland judgment of

19 April 1993, Series A no. 254-B, p. 49, para. 30). The Commission

recalls, however, that it does not follow from this provision that the

reasons given by a court should deal specifically with all points which

may have been raised by one party; a party does not have an absolute

right to require reasons to be given for rejecting each of his

arguments (see e.g. Eur. Court HR, Van de Hurk v. the Netherlands

judgment of 19 April 1994, Series A no. 288, p. 20, para. 61;

No. 15384/89, Dec. 9.5.94, D.R. 77-B, p. 5; No. 16717/90, Dec. 9.1.95,

D.R. 80-A, p. 24; No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98).

In the present case the Commission observes that the City Court

gave a reasoned judgment in which it found that the applicant had

committed, inter alia, two counts of aggravated embezzlement and two

counts of aggravated fraud. As indicated above, the Court of Appeal

accepted the City Court's reasoning in so far as relevant and the

Supreme Court refused leave to appeal. In these circumstances the

Commission considers that the courts have given sufficient reasoning

for the judgment.

As regards the complaint concerning the Referendary's memorandum,

the Commission finds no indication that the refusal to disclose to the

applicant the section which formed part of the deliberations of the

Court of Appeal violated Article 6 (Art. 6) of the Convention.

It follows that this part of the application must be rejected as

being 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 be presumed

innocent was violated. He claims that the courts failed to apply the

rule of in dubio pro reo and that, in a television programme, the

Prosecutor took a stance to his being guilty of certain crimes. He

invokes Article 6 para. 2 (Art. 6-2) of the Convention which reads as

follows:

"2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

As regards the application of the rule of in dubio pro reo, the

Commission considers that the complaint involves the evaluation of

evidence. 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 to 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 or one of its Protocols (cf. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.

45).

In the present case the Commission notes, as indicated above,

that the City Court rendered a judgment in which it assessed the

evidence and consequently reached a reasoned conclusion. The Court of

Appeal accepted the City Court's judgment to the relevant part and the

Supreme Court refused the applicant leave to appeal. The Commission has

not found any appearance of a violation of the Convention or its

Protocols as regards this particular aspect of the proceedings.

The Commission recalls that it has accepted that in certain cases

a media campaign can be prejudicial to the fairness of a trial and

involve the State's responsibility, particularly where it is sparked

off by the state's organs (see e.g. No. 17265/90, Dec. 21.10.93,

D.R. 75, pp. 76-77; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106 at

p. 144 and the reference therein). The Commission considers, however,

that account must be taken of the specific circumstances of the case

and a balance be struck between the interests of the public and the

media to be informed and the interest of the person suspected of an

offence to the protection of the presumption of innocence. The question

whether media publication is contrary to the presumption of innocence

depends on the content of the material published (No. 10847/84,

Dec. 7.10.85, D.R. 44, p. 238). The Commission notes that while

the present case was pending before the City Court the Prosecutor

appeared in a television programme and made comments on the results of

the police investigation and the charges. However, the Commission notes

that while the Prosecutor explained why he was prosecuting the

applicant he did not take an express stance to the applicant's guilt

(cf. No. 14106/88, Dec. 6.12.91, unpublished). Considering that some

publicity is inevitable in connection with an extensive criminal case

involving considerable economic interests, the Commission is of the

view that the television interview in question did not violate the

presumption of innocence or render the proceedings otherwise unfair in

breach of Article 6 (Art. 6) of the Convention.

The Commission also attaches importance to the fact that the

applicant had the opportunity to challenge in the trial courts the

comments the Prosecutor made in the television programme. The

Commission has not found any appearance of a violation of the

Convention or its Protocols as regards this particular aspect of the

proceedings.

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.

3. The applicant finally complains that he was convicted of acts

which, when they were perpetrated, did not constitute offences under

the law in force. He invokes Article 7 (Art. 7) of the Convention which

reads as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed.

2. This Article shall not prejudice the trial and

punishment of any person for any act or omission which, at

the time when it was committed, was criminal according to

the general principles of law recognised by civilised

nations."

According to the case-law of the Convention organs, Article 7

para. 1 (Art. 7-1) of the Convention prohibits the retrospective

application of the criminal law to an accused's disadvantage and, more

generally, embodies the principle that only the law can define a crime

and prescribe a penalty and prohibits in particular the retrospective

application of the criminal law where it is to an accused's

disadvantage (see e.g. Eur. Court HR, Kokkinakis v. Greece judgment of

25 May 1993, Series A no. 260-A, p. 22, para. 52 and Eur. Court HR,

G. v. France judgment of 27 September 1995, Series A no. 325-B, p. 38,

para. 24 and S.W. v. the United Kingdom judgment of 22 November 1995,

Series A no. 335-B, pp. 41-42, para. 35). The Commission has found that

when there has been an amendment of the criminal law subsequent to the

commission of an offence Article 7 (Art. 7) does not guarantee the

right to have the most favourable criminal law applied even if the

provision at issue had been repealed (see No. 7900/77, Dec. 6.3.78,

D.R. 13, p. 70). Moreover, in the sphere of criminal law, Article 7

para. 1 (Art. 7-1) confirms the general principle that legal provisions

which interfere with individual rights must be adequately accessible

and formulated with sufficient precision to enable the citizen to

regulate his conduct (see e.g. No. 18892/91, Dec. 3.12.93, D.R. 76-A,

p. 51 at p. 62 and the reference therein).

In the present case, the Commission notes that the applicant was

convicted of, inter alia, two counts of aggravated embezzlement and two

counts of aggravated fraud on the basis of the law in force at the time

the judgment was rendered. The Commission considers, however, that at

the time the acts were committed, the facts of which the applicant was

accused fell within the scope of the provisions of the Penal Code on

aggravated embezzlement and fraud committed under particularly

aggravating circumstances. The relevant provisions were accessible and

sufficiently foreseeable. Thus, there is no appearance of a violation

of Article 7 (Art. 7) as regards the application of the law in force

at the time the applicant was convicted which law the courts considered

to be less severe.

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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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LUPANDER v. FINLAND

LUPANDER v. FINLAND

LEXI