Lexploria

Application No. 17694/91

by Eero, Jorma and Pertti KORPPOO

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993 the following members being present:

Present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

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 23 November 1990

by Eero, Jorma and Pertti Korppoo against Finland and registered on 21

February 1991 under file No. 17694/91;

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 applicants, all Finnish citizens, are born in 1937, 1945 and

1941, respectively. The first and third applicants are sawmill

technicians and the second applicant is a manager. The first and

second applicants reside at Jäminkipohja and the third one at Ruovesi.

Before the Commission the applicants are represented by Mr. Seppo

Nieminen, a lawyer practising in Tampere.

The facts of the case, as submitted on behalf of the applicants,

may be summarised as follows.

Particular circumstances of the case

I.

In 1986 the applicants were ordered by the County Administrative

Court (lääninoikeus, länsstyrelsen) of Häme to pay residual taxes for

a number of preceding years.

The decisions were largely upheld by the Supreme Administrative

Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on

14 March 1988. The applicants' requests for oral hearings in order to

hear certain taxation officials were rejected, as was their request for

access to certain documents pertaining to the case and kept by the

Central Criminal Police (keskusrikospoliisi, centralkriminalpolisen).

Subsequent to the Supreme Administrative Court's decision the

applicants obtained further evidence allegedly showing that certain

assumed currency transfers of relevance to the imposition of residual

taxes had never taken place. The applicants requested the Supreme

Administrative Court to re-open part of the taxation proceedings,

referring to the new evidence.

On 4 June 1990 the applicants' requests were rejected.

II.

On 29 November 1985 the District Court (kihlakunnanoikeus,

häradsrätten) of Ruovesi convicted the applicants inter alia of

continued tax fraud (from 1977 to 1983) and continued violation of

currency regulations (from 1976 to 1982) and sentenced them to fines.

The applicants were acquitted inter alia on the charges of continued

gross tax fraud (from 1972 to 1976).

On 16 February 1987 the Court of Appeal (hovioikeus, hovrätten)

of Turku acquitted the first and third applicants on the above charges.

The second applicant was convicted of continued gross tax fraud from

1971 to 1975.

On 8 June 1987 the Supreme Court (korkein oikeus, högsta

domstolen) refused leave to appeal.

Subsequently the applicants were charged with gross embezzlement

before the District Court, which held hearings in the case on 6 January

and 16 March 1988.

The District Court heard, inter alia, G.K., a German citizen

resident in the Federal Republic of Germany, as a witness. He had been

summoned to appear before the District Court by the Chief of Police

(nimismies, länsmannen) of Mänttä, while staying in Finland allegedly

for reasons other than the pending trial against the applicants.

The applicants had objected to the District Court's intention to

hear him as a witness by granting him immunity in accordance with

Chapter 1, Section 11, para. 1 of the Penal Code (rikoslaki 39/1889,

strafflag 39/1889) and Chapter 17, Section 26a of the Code of Judicial

Procedure (Oikeudenkäymiskaari, Rättegångs Balk). They submitted that

G.K. had not been summoned in the manner prescribed in the law and that

he himself could have committed, or acted as an accomplice in, the

offence which the applicants had been charged with.

The applicants further referred to their acquittals in 1987 and

argued that they could not be tried twice for the same offence.

On 19 May 1988 the District Court convicted the applicants of

gross embezzlement and sentenced them to seven months' suspended

imprisonment.

The applicants appealed to the Court of Appeal.

Subsequent to the expiry of the time-limit for appealing the

applicants learnt about a statement of 14 July 1988 by K.K., a former

employee of G.K., regarding G.K.'s alleged unreliability as a witness

in the case. However, the applicants' request for permission to

supplement their appeal by hearing K.K. as witness or by allowing her

to submit a written statement to the Court of Appeal was rejected.

On 6 March 1990 the Court of Appeal upheld the District Court's

decision in all respects.

On 16 July 1990 the Supreme Court refused the applicants leave

to appeal.

Relevant domestic law

A person who voluntarily arrives from abroad on the basis of a

summons issued by a Finnish authority in order to testify in a criminal

case shall not, during the period he is staying in Finland for the

purpose of testifying or as long as he is legally prevented from

leaving the country, be charged with or arrested for a previous

offence, nor be detained on the basis of a previous sentence or as a

suspected accomplice in the offences at issue in the case in which he

is to testify (Chapter 1, Section 11, para. 1 of the Penal Code).

Anyone who is not or has not been a party to a case before a

court of law may be heard as a witness in that case (Chapter 17,

Section 18, para. 1 of the Code of Judicial Procedure).

A summons to be served on a witness residing outside Finland

shall be issued by the President of the competent court of the first

instance. The summons shall be sent to the competent authority in the

country where the witness is staying (Chapter 17, Section 26a).

The Supreme Court may grant leave to appeal only if this is of

importance, having regard to the application of the law in other

similar cases, or to the uniformity of that application, or if, because

of a procedural or other fault, there is a particular reason to annul

or nullify a decision, or there is another weighty reason warranting

the granting of leave to appeal (Chapter 30, Section 3, para. 1).

COMPLAINTS

1. The applicants complain that the court proceedings in the

taxation matter were unfair. Despite the applicants' acquittals of the

charges brought against them residual taxes of a punitive nature and

assessed in an arbitrary way were imposed on them. Moreover, the

applicants were not informed of certain documents relied upon by tax

officials and were thus unable to verify whether the documents were

authentic. The Supreme Administrative Court further wrongly refused

to hear certain tax officials as witnesses. In conclusion, the burden

of proof was wrongly placed on the applicants.

In the applicants' view the Commission is competent ratione

temporis to examine the whole of their complaint, as conclusive

evidence could, for reasons beyond their control, only be invoked by

them in their request for a re-opening of part of the taxation

proceedings. As the refusal to re-open the case was rendered

subsequent to the entry into force of the Convention with regard to

Finland, the Supreme Administrative Court was obliged to apply the

Convention. Moreover, part of the residual tax imposed has still not

been fully collected.

The applicants invoke Article 6 paras. 1, 2 and 3 (b) and (d) of

the Convention.

2. As regards the criminal proceedings ending in 1990 the applicants

complain that they were not given a fair trial, as they were convicted

on the basis of the statement by G.K., who had wrongly been granted

immunity despite the fact that he had not been properly summoned. In

any case, his statement was unreliable.

The applicants further allege to have been convicted in spite of

their acquittal on similar charges in 1987. The courts further refused

to obtain certain evidence regarding G.K.'s business activities in the

Federal Republic of Germany. The Court of Appeal of Turku finally

refused to allow them to supplement their appeal with a statement by

K.K.

The applicants invoke Article 6 paras. 1, 2 and 3 (d) of the

Convention.

THE LAW

1. The applicants complain of the alleged unfairness of the court

proceedings in the taxation matter. They invoke Article 6 paras. 1, 2

and 3 (b) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-d) of the Convention,

which read, insofar as they are relevant:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair ... hearing ...

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:

...

(b) to have adequate time and facilities for the preparation of

his defence;

...

(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."

The Commission first has to ascertain whether, and to what

extent, it is competent ratione temporis to deal with this complaint.

In its case-law the Commission has held that, where the facts consist

of a series of legal proceedings, the date of entry into force of the

Convention in respect of the Contracting State in question has the

effect of dividing the period into two, the earlier part escaping the

Commission's jurisdiction ratione temporis, whereas a complaint

relating to the later part cannot be rejected on this ground. On the

other hand, where a court gives judgment after the entry into force of

the Convention, the Commission is competent to ensure that the

proceedings leading up to this judgment were in conformity with the

Convention, as the proceedings before a court are embodied in its final

decision which thus incorporates any defect by which they may have been

affected (cf. No. 8261/78, Dec. 11.10.79, D.R. 18 p. 150, confirmed in

No. 11306/84, Dec. 16.10.86, D.R. 50 pp. 162-163 and, as regards

Finland, No. 17506/90, Dec. 7.4.93).

(i) The Commission recalls that the ordinary taxation proceedings

concerning the imposition of residual taxes on the applicants ended

with the Supreme Administrative Court's decision of 14 March 1988, i.e.

prior to 10 May 1990, which is the date of the entry into force of the

Convention with respect to Finland. These proceedings are therefore,

as such, outside the Commission's competence ratione temporis.

It follows that the complaint in this respect is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (art. 27-2).

(ii) It follows from the above-cited case-law that the re-opening

proceedings ending with the Supreme Administrative Court's decision of

4 June 1990 fall within the Commission's competence ratione temporis.

The Commission considers that the request for a re-opening of the

proceedings cannot have the effect of bringing the original proceedings

within the Commission's competence ratione temporis. Moreover, the

Commission recalls that neither the Convention nor any of its Protocols

contains an obligation for a Contracting State to allow someone the

opportunity to apply for a review of a decision having become res

iudicata. Nor does Article 6 (Art. 6) of the Convention apply to

proceedings for re-opening a trial given that someone who applies for

his case to be reopened and whose sentence has become final is not

someone "charged with a criminal offence" within the meaning of that

provision (No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171). This also

applies to a request for a re-opening of taxation proceedings.

It follows that the complaint in this respect is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (art. 27-2).

2. The applicants also complain of the alleged unfairness of the

criminal proceedings ending in 1990. They invoke the above-cited

Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the

Convention.

The Commission again has to ascertain whether, and to what

extent, it is competent ratione temporis to deal with this complaint.

(i) The Commission first observes that the proceedings up to and

including those before the Court of Appeal of Turku ended on 6 March

1990, that is before the entry into force of the Convention with regard

to Finland. These proceedings are, as such, outside the Commission's

competence ratione temporis.

It follows that the complaint in this respect is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

(ii) As to the subsequent proceedings the Commission observes that the

Supreme Court's examination did not extend to an examination of the

merits of the applicant's appeal (cf. No. 17925/90, Dec. 8.10.91;

e contrario the above-mentioned No. 17506/90, Dec. 7.4.93).

The Commission has already held that an examination under Finnish

law as to whether leave to appeal to the Supreme Court shall be granted

only amounts to an examination of the question whether or not the

conditions under Chapter 30, Section 3, para. 1 of the Code of Judicial

Procedure are at hand. It does not amount to an examination of the

merits of the appeal (T. and S.H. v. Finland, No. 19823/92, Dec.

9.2.93, cf. also HÃ¥kansson and Sturesson v. Sweden, No. 11855/85,

Dec. 15.7.87, D.R. 53 p. 190 at pp. 199-200). The proceedings before

the Supreme Court did not therefore involve a determination of the

criminal charges brought against the applicants within the meaning of

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

It follows that the complaint in this respect is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (art. 27-2).

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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KORPPOO v. FINLAND

KORPPOO v. FINLAND

LEXI