AS TO THE ADMISSIBILITY OF

                      Application No. 18686/91

                      by Kai OJANEN

                      against Finland

      The European Commission of Human Rights sitting in private on

31 March 1993, the following members being present:

           MM.   J.A. FROWEIN, President of the First Chamber

                 F. ERMACORA

                 G. SPERDUTI

                 E. BUSUTTIL

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

           Mrs.  M.F. BUQUICCHIO, Secretary to the First 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 18 October 1990

by Kai OJANEN against Finland and registered on 19 August 1991 under

file No. 18686/91;

      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 applicant is a Finnish citizen born in 1944 and resident in

Helsinki. He is retired.

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

summarised as follows.

Particular circumstances of the case

      On 10 December 1987 the applicant's attorney (oikeudenkäynti-

asiamies, rättegångsombud) requested that criminal charges be brought

against the applicant, alleging that he had been insulted by the

applicant over the telephone.

      On 26 January 1989 the City Court (raastuvanoikeus, rådstuvu-

rätten) of Helsinki convicted the applicant of continuous disturbance

of domiciliary peace and insults and sentenced him to fines. The

applicant was found to have insulted his attorney by telephoning him

at work "on numerous occasions in 1987". Some telephone calls had

reached the attorney directly and some had been taped by a telephone

answering machine. The contents of two cassettes had been transcribed

and included in the pre-trial record.

      The City Court's reasoning was the following:

      "[The applicant] has, on numerous occasions in 1987, called

      P. at his work place with a clear intention of disturbing

      him. (He has) thereby, either directly or by leaving

      messages on P.'s telephone answering machine, insulted P.

      by very insulting expressions and threats."

      At a hearing on 3 November 1988 the applicant had stated that he

did not remember having made any of the telephone calls included in the

pre-trial record. He admitted, however, having telephoned the attorney

in regard to a commission and having used strong language (in Finnish

"suorat sanat"). At the Public Prosecutor's request the trial was

postponed in order to enable him to present further evidence in the

form of recordings on the attorney's telephone answering machine. The

applicant's request to be assisted by official counsel was rejected.

      Also the attorney attended the first hearing.

      At the second hearing on 26 January 1989 the Prosecutor presented

the two cassettes, the contents of which had been transcribed and

included in the pre-trial record. These were included in the Court's

file. The applicant again denied the charges. He further requested that

the tape recordings be played by the City Court and that the time when

the calls allegedly made by him had taken place be specified, as the

latter was of importance with regard to the period of limitation for

the offences in question.

      The attorney did not attend the second hearing.

      The applicant, now represented by counsel, appealed against the

City Court's judgment to the Court of Appeal (hovioikeus, hovrätten)

of Helsinki, referring to his submissions before the District Court.

He further stated that he had commissioned the attorney in 1985 for

legal proceedings to begin in 1986. He had subsequently called the

person in question a few times and also written to him, particularly

in 1986, in order to obtain a settlement regarding the case for which

the lawyer had been commissioned. However, only some of the applicant's

letters had contained expressions referred to by the Prosecutor.

      On 5 June 1990 the Court of Appeal rejected the appeal, finding

no reasons for changing the City Court's judgment.

      The applicant's request for leave to appeal to the Supreme Court

(korkein oikeus, högsta domstolen) was rejected on 26 September 1990.

Relevant domestic law

      The period of limitation for reporting to the prosecutor the

offence of which the applicant was convicted is one year from the date

when the complainant finds out about the offence and the perpetrator

and two years for the prosecutor to bring charges (Chapter 8, Section

1, para. 1 and Section 6 of the Criminal Code (rikoslaki, strafflagen).

      Courts shall see to it that cases are being thoroughly dealt with

(Chapter 14, Section 4 of the Code of Judicial Procedure). Insofar as

oral submissions to a court can be assumed to be of relevance, they

shall be reproduced and immediately be read out. The party shall be

asked whether he objects to the way in which his submission has been

reproduced. Any remark not leading to an amendment to the minutes shall

be noted in the minutes (Chapter 14, Section 5 of the Code of Judicial

Procedure).

COMPLAINTS

      The applicant complains that he did not receive a fair trial. The

charges brought against him were not thoroughly examined by the courts.

Although the messages recorded by the answering machine had been

transcribed in the pre-trial record, no distinction had been made

between the persons who had telephoned the applicant's former counsel.

It was never exactly determined when the calls which had led to the

applicant's conviction, had been made. Moreover, the prosecutor handed

the tape recordings over to the City Court in the applicant's absence,

and these were neither played at a public hearing, although this was

requested by the applicant, nor were they examined by the City Court

in any other manner. The President of the City Court allegedly refused

to show him the tape recordings and the telephone answering machine.

In his observations of 6 May 1992 the applicant further complained that

he was unable to challenge the complainant's allegations before the

courts, as the case was decided in the complainant's absence.

      The applicant further complains that nothing of his 3-4 minute-

long oral submission to the City Court at its first hearing was

reproduced in the court's minutes, for which reason he had to repeat

his submission in writing at the second hearing; that at the second

hearing the President refused to reply to his question why his oral

submission had been left out from the minutes of the first hearing, as

well as to his request that the tape recordings be played by the City

Court;  and that the events at the hearing were not reproduced in the

minutes in the correct order.  Thus, the City Court was in breach of

Chapter 14, Sections 4 and 5 of the Code of Judicial Procedure.

      The applicant finally complains of the lack of reasoning in the

court decisions.

      He invokes Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 18 October 1990 and registered

on 19 August 1991.

      On 10 January 1992 the Commission decided to request the

respondent Government to submit their written observations on the

admissibility and merits of the application. It further decided to

refer the application to the First Chamber.

      On 30 March 1992 the Government submitted their observations.

      The applicant's observations in reply were submitted on 6 May

1992. Further observations were submitted by him on 10 January 1993.

THE LAW

      The applicant complains of the way in which evidence was taken

and assessed in his case, and, in particular, of the fact that the

telephone calls recorded by the answering machine were not played at

a public hearing for the purpose of establishing whether the calls for

which he had been indicted had really been made by him. Moreover, the

applicant was refused access to the recordings. In his observations of

6 May 1992 the applicant further complained that he was unable to

challenge the complainant's allegations before the courts, as the case

was decided in the complainant's absence.

      The applicant further complains that nothing of his oral

submission to the City Court at its first hearing was reproduced in the

court's minutes, for which reason he had to repeat his submission in

writing at the second hearing. He further alleges that at the second

hearing the President of the City Court refused to reply to certain

questions put by him, and that the events at the hearing were not

reproduced in the minutes in the correct order. Thus, the City Court

was in breach of Chapter 14, Section 5 of the Code of Judicial

Procedure.

      The applicant invokes Article 6 (Art. 6) of the Convention, which

reads, in so far as it is relevant:

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

      against him, everyone is entitled to a fair ... hearing ...

      by [a] ... tribunal ...

      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 Government submit that the complaints are manifestly ill-

founded. The tape recordings were admittedly handed over to the City

Court in the applicant's absence. The courts found it more suitable for

the purpose of a hearing that the tape recordings be transcribed and

included in the pre-trial record. Part of their contents were, however,

attached to the minutes from the first hearing before that court. The

applicant had adequate time to comment on them during the second

hearing as well as in his submissions to the courts of appeal. The

applicant's defence was thereby not significantly impeded and the

transcription of the recordings had the same effect as the playing of

the tapes before the courts. Reference is made to the Gillow judgment

(Eur. Court H.R., judgment of 24 November 1986, Series A no. 109, pp.

27-28, para. 71). The courts considered that the contents of part of

the telephone calls linked them to the applicant's commission to the

complainant. Those calls could be dated with some accuracy through

indications in other telephone calls recorded.

      The Government further submit that the telephone recordings as

such were not the sole evidence forming the basis for the applicant's

conviction. The courts further had regard to testimony by the

complainant. Finally, the applicant himself, although denying having

intended to disturb or insult the complainant, did admit having

telephoned him on some occasions and having resorted to strong

language. A more specific indication in the City Court's decision of

the dates when the telephone calls forming the basis for the

applicant's conviction had been made would have been irrelevant to the

question whether part of the charges had been brought after the expiry

of the period of limitation. The City Court's decision included the

charges brought, a description of the offence, the legal provisions

applied and the sanction imposed. This reasoning sufficiently informed

the applicant of the court's assessment of the charges and the outcome

of the case.

      The Government finally point out that Chapter 14, Section 5 of

the Code of Judicial Procedure provides Presiding Judges with a wide

discretion when it comes to conducting hearings and determining the

relevance of oral submissions for the purpose of reproducing them in

the minutes. The failure of the Presiding Judge to have the applicant's

oral submissions reproduced and to reply to the applicant's questions

being matters which cannot be corrected in a later hearing, the

complaint in this respect is, in the Government's view, incompatible

ratione temporis.

      The applicant contends that before the City Court he did admit

having telephoned the complainant and having used "strong language".

He had submitted, however, that he could not remember having made the

calls transcribed in the pre-trial record. Although the City Court's

reason for holding a second hearing was to enable the prosecution to

present the tape recordings, the contents of the tapes presented at the

second hearing had never been and were not shown to him and their

contents in no way verified. The City Court thereby violated not just

the Convention but also Chapter 14, Section 4 of the Code of Judicial

Procedure, which prescribes that courts shall carefully investigate

matters before them. It cannot be excluded that someone else had

disguised himself as the applicant when telephoning the complainant.

The applicant chose not to comment on the transcription in the pre-

trial record, as the Presiding Judge had refused to play the

recordings. The appropriate time for such comments would have been

after the recordings had been played to him.

      The applicant refutes the Government's assertion that the

transcriptions of the recordings indicated with sufficient clarity when

the calls had been made. The call which did indicate the day and the

month when it had been made did not, however, indicate the year.

      The  applicant further points out that he was not represented by

counsel before the City Court. Moreover, the complainant was never

heard by the City Court about the contents of the recordings. The

refusal by the Presiding Judge to read out loud the parts of the

applicant's oral submissions which had been reproduced in the court's

minutes was clearly in breach of Chapter 14, Section 5 of the Code of

the Judicial Procedure. The questions which the applicant put to the

Presiding Judge and which remained unanswered were pertinent.

(i)   The Commission first has to ascertain whether, and to what

extent, it is competent ratione temporis to deal with the application.

It recalls that in accordance with the generally recognised rules of

international law, the Convention only governs, for each Contracting

Party, facts subsequent to its entry into force with regard to that

Party (see e.g. No. 9453/81, Dec. 13.12.82, D.R. 31 pp. 204, 208). 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 in two, the earlier part escaping the

Commission's jurisdiction ratione temporis, whereas a complaint

relating to the latter 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 p. 162; see further, as regards

Finland, No. 17925/91, Dec. 8.10.91, unpublished).

      In the present case the proceedings before the City Court of

Helsinki terminated with the judgment of 26 January 1989, i.e. prior

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

with respect to Finland. These proceedings are therefore, as such,

outside the competence of the Commission ratione temporis.

(ii)  The Commission has next considered the application insofar as it

pertains to the proceedings before the Court of Appeal of Helsinki and

the Supreme Court.

      The proceedings before the Court of Appeal started before the

entry into force of the Convention with respect to Finland, i.e. prior

to 10 May 1990, but terminated after that date, i.e. on 5 June 1990.

The Commission is therefore competent to examine whether the

proceedings before the Court of Appeal leading to the judgment rendered

on the last-mentioned day were in conformity with the Convention, as

the proceedings before the Court are embodied in its judgment which

thus incorporates any defects by which they may have been affected.

Also the proceedings before the Supreme Court are within the

Commission's competence ratione temporis.

      The Commission notes, however, that the applicant does not

complain about the proceedings before the Court of Appeal or the

Supreme Court as such, but rather about the failure of those courts to

rectify the alleged procedural errors made by the City Court. The

question therefore arises whether the acceptance of these alleged

errors by the higher courts can bring the alleged violations of Article

6 (Art. 6) into the Commission's competence.

      The Government submit in this respect that "[t]he Court of Appeal

of Helsinki had competence to examine the case of [the applicant] in

full." Referring further to the fact that "[t]he City Court's decision

[was] in a way included in the 'no change' decision of the Court of

Appeal", as well as to the fact that the applicant raised all the

alleged errors before the Court of Appeal and the Supreme Court, the

Government conclude that

      "the procedural errors by the City Court committed before

      the entry into force of the Convention seem to fall within

      the competence of the Commission. It is the view of the

      Government that such [an] error, which has occurred before

      the entry into force of the Convention with regard to

      Finland, and which could not be corrected in any later

      hearing, is, however, beyond the competence ratione

      temporis of the Commission."

      The Commission considers that, insofar as compatibility has been

admitted by the Government, it is competent ratione temporis to examine

the application. It is further not required to decide whether some of

the complaints fall outside the Commission's competence for the reason

stated by the Government, as the application is in any case

inadmissible as a whole for the reasons stated below.

(ii)  The Commission observes that in its examination of the case it

is not required to take into account the fact that the applicant was

unable to question the complainant before the City Court violates

Article 6 (Art. 6) of the Convention, as it follows from Article 26

(Art. 26) of the Convention that the Commission may only entertain a

complaint raised within a period of six months from the date of the

final domestic decision. In this case, the Supreme Court's decision was

rendered on 26 September 1990, while the particular complaint at issue

was made on 6 May 1992, which is more than six months later. It follows

that this part of the application has been lodged out of time and must

be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

(iii)  As regards the remainder of the applicant's complaints the

Commission recalls that the guarantees in paragraph 3 of Article 6

(Art. 6-3) of the Convention are specific aspects of the right to a

fair trial enshrined in paragraph 1. The application should therefore

be examined under the two provisions taken together (Eur. Court H.R.,

Eur. Court H.R., Artner judgment of 28 August 1992, para. 19, to be

published in Series A no. 242-A).

      The admissibility of evidence is primarily a matter of regulation

by national law and, as a rule, it is for the national courts to assess

the evidence before them. The Convention organs' task is to ascertain

whether the proceedings considered as a whole, including the way in

which evidence was taken, were fair (Eur. Court H.R., Asch judgment

of 26 April 1991, Series A no. 203, p. 10, para. 26).

      The Commission considers that the Gillow case referred to by the

Government is distinguishable from the present one. True, the applicant

in that case was refused access to tape recordings in order to verify

whether they had been correctly transcribed. The recordings were,

however, not evidence submitted to the first-instance court, but were

recordings of the hearing before such a court and were, thus, the

court's own material. The recordings at issue in the present

application constituted an important part of the evidence submitted by

the prosecution and leading to the applicant's conviction. The

applicant was not present when the prosecutor submitted the tapes to

the City Court, nor were the tapes played in his presence before that

court or during the pre-trial investigation. The applicant insisted

that they should have been played before the City Court, in order to

enable it to judge whether or not the telephone calls at issue had been

made by him.

      The Commission recalls that all the evidence in criminal

proceedings must normally be produced in the presence of the accused

at a public hearing with a view to adversarial argument (cf. the above-

mentioned Asch judgment, para. 27). Nevertheless, the Commission

cannot find any appearance of a violation of Article 6 (Art. 6) because

of the manner in which the City Court dealt with the recordings.

Although the recordings were handed over to the City Court in the

applicant's absence it is clear from his complaint that he was aware

that this had been done. The contents of the recordings were reflected

in the pre-trial record. Thus, they were available to the applicant,

who had the possibility to comment on them before the courts.

      The Commission further notes that the tape recordings were not

the only evidence on which the conviction was based. In addition, the

City Court took into account the testimony presented by the

complainant, with whom the applicant was confronted at the first

hearing before the City Court, as well as the statements by the

applicant himself in which he admitted having made some telephone calls

to the complainant and having used strong language in that connection.

      The Commission notes that the City Court referred to the

telephone calls as having been made "on numerous occasions in 1987".

However, even assuming that some of the calls had been made in the very

beginning of 1987, a specification of the dates when those had been

made would not have affected the period of limitation, as the period

of limitation as prescribed by Chapter 8, Sections 1 and 6 of the

Criminal Code had, in any case, been complied with.

      The Commission further observes that, while admittedly the

applicant's oral submissions at the City Court's first hearing were not

reproduced in the minutes, the applicant did not, at the second

hearing, avail himself of the possibility to submit those observations

in writing. Moreover, there is no indication that the refusal of the

Presiding Judge to reply to the applicant's questions created

inequality between the parties. In these circumstances the Commissions

finds no appearance of a violation of Article 6 (Art. 6) of the

Convention.

      The Commission finally recalls that in exceptional circumstances

the absence of reasons in a court decision may raise an issue as to the

fairness of the procedure which is guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention (e.g. No. 10857/84, Dec. 15.7.86, D.R. 48

pp. 106-153 at pp. 150-151; No. 8769/79, Dec. 16.7.81, D.R. 25 pp. 240-

242 at p. 241). The national courts must indicate with sufficient

clarity the grounds on which they have based their decision (Eur. Court

H.R., Hadjianastassiou judgment of 16 December 1992, para. 33, to be

published in Series A no. 252). Article 6 (Art. 6) does not require,

however, that reasons given by a court should deal specifically with

all points and arguments which may have been considered by one party

to be essential to his case (the above-mentioned Application No.

10857/84, loc. cit.). In the assessment of the sufficiency of the

reasoning under Article 6 (Art. 6) an important consideration is

whether the reasons given by a lower court in a criminal case have made

it possible for the accused to exercise usefully the rights of appeal

available for him (the above Hadjianastassiou judgment, loc. cit.).

Insofar as appeal instances are concerned, however, Article 6 (Art. 6)

does not require that a court, when rejecting an appeal by reference

to the reasoning given by a lower court, accompanies its decision by

detailed reasons (No. 10733/84, Dec. 2.10.84, unpublished).

      The Commission notes that in the present case the City Court's

decision, though brief, explained the proven facts, their legal

qualification, the legal provisions applied and the sanction imposed.

Although a more detailed reasoning might have been preferable from the

applicant's point of view, the Commission finds that the reasoning by

the City Court was sufficient for the purpose of enabling the applicant

to exercise his right of appeal in a normal way.

      True, the decision of the Court of Appeal was not accompanied by

any other reasoning than a statement that there were no reasons for

changing the City Court's judgment. However, as the Court of Appeal

must be interpreted thereby to have fully accepted the reasoning by the

City Court, the lack of detailed reasons in the Court of Appeal's

decision raises as such no issue under Article 6 (Art. 6).

      In the above circumstances the Commission cannot find any

indication of a violation of Article 6 para. 1 (Art. 6-1) 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.

(iv)  The applicant finally complains about the allegedly defective

reasoning in the decision of the Supreme Court refusing him leave to

appeal.

      The Commission recalls, however, that proceedings leading to the

refusal of leave to appeal do not involve a "determination" of a

criminal charge (No. 19823/92, T. and S. v. Finland, Dec. 9.2.93,

unpublished; cf., mutatis mutandis, No. 11855/85, Dec. 15.7.87, D.R.

53 p. 190 at pp. 199-200).

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

being 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)                            (J.A. FROWEIN)