Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22183/93

by I.T.L.H.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 12 July 1992 by

I.T.L.H. against Finland and registered on 8 July 1993 under file

No. 22183/93;

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 1958 and currently

serving a prison sentence in the Hämeenlinna Central Prison. Before the

Commission she is represented by Ms. Helena Laine, a lawyer in

Helsinki.

The facts, as submitted by the applicant, may be summarised as

follows.

A. The particular circumstances of the case

On 11 May 1990 the police in Vantaa obtained information about

a manslaughter. During the preliminary investigation the police

questioned the applicant, the applicant's brother S and a woman named

P as suspects in relation to the crime. The police also questioned

twelve other persons as witnesses. At a later stage of the preliminary

investigation the police questioned S and P again, but this time as

witnesses and not as suspects.

The applicant was arrested on 20 May 1990 and she remained in

detention on remand until 31 October 1990. It appears that on

1 November 1990 she began to serve a prison sentence for another crime.

The applicant was charged with manslaughter contrary to chapter

21 section 1 of the Penal Code committed on 9 May 1990. The case was

heard by the District Court (kihlakunnanoikeus) of Vantaa. The District

Court heard five witnesses, including S and P. According to the

statements of S, P and the applicant, the three of them had been the

only persons present when the crime took place. Furthermore, the

medico-legal record of the autopsy was submitted to the District Court

and the Court heard the doctor who had performed the autopsy.

The applicant requested that four more persons be called as

witnesses. These were, on the one hand, Y and L on the basis that P had

allegedly confessed to them that she had lied about the applicant's

guilt, the real guilty party being S and, on the other hand, A and K,

who were not eye-witnesses but in whose cottage the applicant had

stayed after the crime.

The District Court rejected the applicant's request for an

adjournment by stating that it was not probable that the proposed new

evidence could change the relevant evidence already obtained.

On 18 June 1991 the District Court found the applicant guilty of

the charges brought against her and sentenced her to 10 years'

imprisonment, the 5 months 12 days spent in detention from 20 May 1990

to 31 October 1990 being credited towards the sentence.

In the meantime, the applicant charged S and P in the same

District Court of having caused her bodily harm on 9 May 1990 in the

aftermath of the manslaughter. According to Finnish law a complainant

has independent standing for prosecution purposes. The accused in this

case, namely S and P, pleaded not guilty to the charges against them.

According to their statements the applicant had broken one of the

windows on S's car and when clearing up this incident S had hit the

applicant and P had kicked her. This incident had taken place some time

after the manslaughter in the vicinity of the scene of that crime. On

4 September 1990 the District Court sentenced S and P, respectively,

to 20 day-fines totalling FIM 400.

The applicant appealed against her conviction to the Court of

Appeal (hovioikeus) of Helsinki, which by its judgment of

17 October 1991 quashed the District Court's judgment of 18 June 1991

and referred the case back to the District Court. The Court of Appeal

stated inter alia the following:

(translation)

"On 18 June 1991 (the applicant) gave the District Court

written statements signed by (L and Y) and requested that

the case be postponed in order to hear them and certain

other persons as witnesses. Nevertheless, the District

Court did not approve the request, but decided the case

without hearing as witnesses, in the light of their written

statements, (L and Y) as well as (P), whose version of

events is described in these statements. The Court of

Appeal considers that the evidence presented in the

mentioned statements may have relevance in evaluating the

case. Because of this the District Court should not have

rejected the request for an adjournment on the grounds set

out in its judgment and it should not have decided the case

without hearing at least these persons as witnesses. Taking

into account also the need to provide legal safeguards in

regard to the possibility of appeal, it is most suitable to

hear these witnesses in the District Court."

The District Court heard the case again and in these proceedings

it heard evidence from witnesses L, Y and P about the alleged

conversations between them. It also heard evidence from the applicant's

present husband H and a witness K about the circumstances after the

manslaughter. It could not hear the man named A, whom the applicant had

also requested as a witness, because the District Court found out that

A had died during the proceedings.

On 27 November 1991 the District Court after evaluating the

evidence found the applicant guilty of the charges against her and

sentenced her to 10 years' imprisonment, the same period being credited

towards the sentence as in its earlier judgment.

The applicant appealed to the Court of Appeal. She submitted that

she was innocent and that the District Court should not have heard S

and P as witnesses because during the preliminary investigation they

had been suspected of the same crime and thus they were to be

considered as parties to the case. The applicant also requested the

Court of Appeal to hold an oral hearing.

By its judgment of 17 March 1992 the Court of Appeal rejected the

request for an oral hearing and upheld the District Court's judgment.

The applicant appealed to the Supreme Court. Her appeal was

directed against the alleged procedural errors due to the hearing of

S and P as witnesses. She also maintained that all the witnesses should

be heard again on account of the assault committed by S and P against

the applicant on the same day as the manslaughter took place. She

further alleged that the evidence obtained in the case did not show

that she was guilty. The applicant referred to chapter 17 section 18

of the Code of Judicial Procedure (oikeudenkäymiskaari), which reads

in so far as relevant as follows:

(translation)

Everyone, except a party or former party to the case, can

be questioned as a witness. In a criminal case an injured

party shall not be questioned as a witness even if he does

not avail himself of his right to be heard in court,

neither shall a person who has earlier been sentenced to

punishment for the same crime be questioned as a witness.

On 16 June 1992 the Supreme Court refused the applicant leave to

appeal.

B. Relevant domestic law

The Court of Appeal may, if it considers it necessary, hold an

oral hearing in a case in which an appeal against the judgment of the

court of first instance has been lodged. Such a judgment cannot, as

regards the charges brought against an accused, be amended by the Court

of Appeal following a re-evaluation of the evidence without a

re-hearing having been held, unless the sentence imposed by the Court

of Appeal amounts only to fines or unless a re-hearing would clearly

be unnecessary. In assessing the latter special regard shall be had to

the interests of the accused (chapter 26, sections 7 and 8 of the Code

of Judicial Procedure).

COMPLAINTS

1. The applicant complains that she did not have a fair trial. She

submits that her guilt has not been proved and thus she should have

been presumed innocent and not been convicted. She claims that she did

not have the opportunity to question witnesses on her behalf under the

same conditions as witnesses against her due to the fact that the

District Court did not hear witnesses on her behalf until 18 months

after the incident and by then one witness, A, had already died. She

submits that it was a gross procedural error to hear S and P as

witnesses under oath since they had both been suspected of the relevant

crime. Furthermore, another criminal case had been pending in the same

District Court, in which the applicant charged S and P of having caused

her bodily harm during the same series of events and the District Court

should have joined the cases. She further submits that her right to a

trial within a reasonable time was violated.

2. Finally, the applicant maintains that it was important for there

to be an oral hearing in the Court of Appeal.

The applicant invokes Article 6 paras. 1, 2 and 3 (d) of the

Convention.

THE LAW

1. The applicant complains of several infringements of Article 6

(Art. 6) of the Convention in connection with the criminal proceedings

instituted against her.

As far as relevant Article 6 paras. 1, 2 and 3 (d) (Art 6-1, 6-2,

6-3-d) of the Convention read as follows:

"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 ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. 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; ..."

a. The applicant has referred not only to Article 6 para. 1

(Art. 6-1) but also to paragraphs 2 and 3 of this Article (Art. 6-2,

6-3). In this respect the Commission recalls that the guarantees in

paragraphs 2 and 3 (Art. 6-2, 6-3) are specific aspects of the right

to a fair trial set forth in paragraph 1 (Art. 6-1) (cf., inter alia,

Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series

A No. 110, p. 14, para. 29). Accordingly, the Commission will have

regard to these aspects when examining the facts under paragraph 1 of

Article 6 (Art. 6-1). The Commission further recalls that it must

consider the proceedings as a whole. Its task is to ascertain whether

the proceedings in their entirety were fair (cf. for example Eur. Court

H.R., Stanford judgment of 23 February 1994, Series A no. 282-A, p. 10,

para. 24).

b. The applicant has raised the question of fair trial with regard

to the presumption of innocence. She maintains that she was wrongly

convicted and that because the evidence did not clearly prove her

guilt, the charge should have been dismissed.

The Commission recalls in this regard that its 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 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 its

constant case-law (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A

p. 88).

The Commission finds that no evidence has been adduced to show

that the applicant's right to the presumption of innocence was

violated.

c. The applicant further complains that her right to examine

witnesses on her behalf under the same conditions as witnesses against

her was violated because she could question witnesses on her behalf

only after the Court of Appeal had quashed the first judgment and

referred the case back to the District Court.

In this respect the Commission notes that the Court of Appeal

corrected the procedural errors which according to the Court of Appeal

had taken place during the original proceedings in the District Court.

It referred the case to the District Court in order to give the

applicant an opportunity to summon the witnesses she had requested

should be heard. The hearing of the witnesses in the District Court

instead of the Court of Appeal made it possible for the new evidence

to be evaluated first by the District Court and later, if need be, also

by the Court of Appeal. Thus it was in the interests of due process

that the Court of Appeal did not hear these new witnesses directly. The

new witnesses were heard in the District Court in the same conditions

as the witnesses during the original proceedings. The Commission notes

that the witness A, who had died during the proceedings, was not an

eye-witness and that he would have given evidence only about the events

after the crime. Furthermore, the Court of Appeal, which had not been

aware of A's death, had not stated that it would be necessary to hear

evidence from A. During the rehearing the District Court heard the

witness P again. The fact that some time had naturally passed since the

original proceedings does not mean that the applicant's right to

question witnesses within the meaning of Article 6 para. 3 (d) would

have been violated.

d. The applicant further submits that it was a procedural error to

hear S and P as witnesses, because they had been suspected of the

manslaughter. She also maintains that the cases concerning the

manslaughter on the one hand and the assault against her on the other

hand should have been joined.

The Commission notes that S and P were not defendants or

co-defendants in the case concerning the manslaughter. Thus they were

to be considered as witnesses within the meaning of Article 6 para. 3

(d) (Art. 6-3-d). The Commission notes that the underlying question in

the application in this regard is actually the question of how evidence

given by persons who may have a motive to protect themselves should be

evaluated. That the witnesses S and P had caused bodily harm to the

applicant later on the same day does not change their status as

witnesses in the manslaughter case. The assaults against the applicant

and the manslaughter with which the applicant was charged were

different offences committed at different times. The District Court had

no obligation to join these cases. The Commission finds no indication

of such procedural errors concerning the evidence of S and P as would

amount to a violation of Article 6 (Art. 6).

e. Furthermore, the applicant complains about the length of the

proceedings.

The proceedings began with the arrest of the applicant on

20 May 1990 and ended on 16 June 1992 when the Supreme Court refused

the applicant leave to appeal. Thus the length of the proceedings was

approximately two years and one month.

The Commission reiterates that the reasonableness of the length

of proceedings must be assessed in the light of the circumstances of

the case and having regard to the following criteria: the complexity

of the case, the conduct of the parties and that of the authorities

dealing with the case (Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

The Commission notes that the case was not complex as regards

either the legal issues or the facts. It notes that the original

proceedings in the District Court lasted approximately one year and the

proceedings after that, i.e. in the Court of Appeal, in the District

Court, again in the Court of Appeal and finally in the Supreme Court,

lasted altogether one year. Taking into account that the case was heard

at five instances the Commission, making an overall assessment of the

circumstances of the case, considers that a reasonable time was not

exceeded.

Summing up, the Commission recalls that the guarantees in

paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are

specific aspects of the right to a fair trial set forth in paragraph 1

(Art. 6-1). The Commission has considered the particular aspects and

incidents invoked by the applicant and has found that these did not

assume such importance as to constitute a decisive factor in the

general appraisal of the trial. In addition an examination of the

conformity of the trial as a whole with the rules laid down in

Article 6 (Art. 6) of the Convention has not disclosed any appearance

of a violation of this provision.

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. Finally, the applicant maintains that it was important for an

oral hearing to be held in the Court of Appeal.

In this respect the Commission notes Finland's reservation to

Article 6 (Art. 6) which reads, in so far as relevant, as follows:

"For the time being, Finland cannot guarantee a right to an

oral hearing in so far as the current Finnish laws do not

provide such a right. This applies to:

1. proceedings before the Courts of Appeal, ... in

accordance with Chapter 26 Sections 7 and 8, ... of the

Code of Judicial Procedure ... "

The Commission observes that chapter 26, section 7 of the Code

of Judicial Procedure does not provide a right to an oral hearing in

appeal proceedings in the Court of Appeal.

The Commission further observes that under chapter 26, section 8

of the Code of Judicial Procedure a judgment of a court of first

instance cannot, as regards the charges brought against an accused, be

amended following a re-evaluation of the evidence without a re-hearing

having been held, unless the sentence imposed by the Court of Appeal

amounts only to fines or unless a re-hearing would clearly be

unnecessary. In the instant case the applicant's conviction was not

amended on appeal.

Under Finnish law the applicant was not entitled to a hearing

before the Court of Appeal. The Commission finds that Finland's

reservation covers this complaint.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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I.T.L.H. v. FINLAND

I.T.L.H. v. FINLAND

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