Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18607/91

by H.V.

against Finland

The European Commission of Human Rights sitting in private on

10 January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

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 December 1990

by H.V. against Finland and registered on 26 July 1991 under file No.

18607/91;

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 1941 and resident at

Y.. She is a clerical officer by profession. Before the Commission

she is represented by Mr. Kari Peippo, Public Legal Adviser of Y.

The facts, as submitted on behalf of the applicant, may be

summarised as follows.

Particular circumstances of the case

On 15 November 1989 the applicant was convicted of continuous

breach of domiciliary peace and sentenced to fines by the District

Court (kihlakunnanoikeus, häradsrätten) of Y.. She was found to have

called Mr. and Mrs. K. on fifteen occasions from April to the end of

August 1989. The Court considered Mrs. K.'s story credible as, during

the pre-trial investigation, the applicant had at first denied the

charges; having been informed, however, that two calls (on 13 and 29

August 1989) had been traced to her telephone she subsequently

confessed having made the calls; the calls had been made subsequent to

the appointment of Mr. K. to a municipal post which the applicant had

also applied for; and the calls had stopped following the pre-trial

interrogation of the applicant.

The applicant appealed to the Court of Appeal (hovioikeus,

hovrätten) of Vaasa, requesting a hearing or, alternatively, that the

case be referred back to the District Court for examination of the

applicant's husband as a witness for the defence. The applicant stated

inter alia that, as the pre-trial record did not contain sufficient

evidence of her guilt, she had not prepared herself to present counter-

evidence before the District Court.

On 15 June 1990 the requests were rejected and the District

Court's decision upheld.

On 15 October 1990 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicant leave to appeal.

The applicant was either assisted or represented by a lawyer

throughout the domestic proceedings.

In December 1990 the applicant complained of the proceedings

before the District Court and the Court of Appeal to the Parliamentary

Ombudsman (Eduskunnan oikeusasiamies, Riksdagens justitieombudsman).

On 5 February 1991 the Deputy Ombudsman found no reason to

criticise the proceedings.

Relevant domestic law

Under Chapter 26 Section 7 of the Code of Judicial Procedure

(oikeudenkäymiskaari, Rättegångs Balk) a Court of Appeal may, when

necessary, arrange a hearing at which parties, witnesses or expert

witnesses may be heard or other kinds of evidence be presented. Under

Section 10 the Court of Appeal may, for weighty reasons, decide that

a party, a witness or an expert witness be heard by a court of first

instance, that is by a City Court or a District Court.

COMPLAINT

The applicant complains of her conviction. Although the burden

of proof lay on the Prosecutor he submitted no evidence to the District

Court showing her guilt. Thus, she was convicted of having made all the

telephone calls reported to the police by the complainants, although

she admitted having made only the two calls which had been traced.

Furthermore, those calls were not and could not be considered to be of

a criminal character. Moreover, she was not allowed to put forward

evidence in her favour when this became necessary, that is following

the District Court's decision. She invokes Article 6 para. 3 (d) of the

Convention.

THE LAW

The applicant complains of her conviction. She submits that no

evidence showing her guilt was presented by the Prosecutor. When,

following the District Court's decision, it became necessary to have

her husband examined as a witness, this was refused by the Court of

Appeal. She invokes Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention which reads:

"Everyone charged with a criminal offence has the following

minimum rights:

... 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 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 in the same case, 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

falling outside 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 and

No. 17925/91, Dec. 8.10.91, not published).

In the present case, the District Court's decision was given on

15 November 1989, while the Convention entered into force with regard

to Finland on 10 May 1990. The proceedings before the District Court

of Y. are therefore, as such, outside the competence of the Commission

ratione temporis.

It follows that the part of the application pertaining to these

proceedings is incompatible ratione temporis with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

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

pertains to the proceedings before the Court of Appeal of Vaasa. The

Commission first 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 (e.g.

No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71,

Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,

D.R. 18 p. 31, 45).

As the guarantees under Article 6 para. 3 (Art. 6-3) of the

Convention are specific aspects of the right to a fair trial secured

in Article 6 para. 1 (Art. 6-1), the Commission has considered the

complaint under the two provisions taken together (cf. Eur. Court H.R.,

Asch judgment of 26 April 1991, to be published as Series A no. 203,

para. 25).

Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as

it is relevant:

"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..."

The admissibility of evidence is primarily a matter for

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 (cf. ibid.,

para. 26).

There is no absolute right under the Convention for a person

charged with a criminal offence to have witnesses examined on his

behalf (e.g. No. 8417/78, 4.5.79, D.R. 16 p. 200). The domestic courts

have discretion to decide upon the relevance of proposed evidence

insofar as this is compatible with the concept of fair trial (Eur.

Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22,

pp. 38-39, para. 91; Eur. Court H.R., Bricmont judgment of 7 July 1989,

Series A no. 158, p. 31, para. 89).

The Commission observes that Finland, in its reservation made in

accordance with Article 64 (Art. 64) of the Convention, states that it

cannot guarantee a right to an oral hearing insofar as the current

Finnish laws do not provide such a right. This applies inter alia to

proceedings before the Courts of Appeal in accordance with Chapter 26

Section 7 of the Code of Judicial Procedure.

The Commission does not find it necessary to examine whether this

reservation applies in the present case, as this part of the

application is manifestly ill-founded on the following grounds.

It appears that the Court of Appeal, by accepting the District

Court's reasoning, had regard to the fact that two of the calls to the

complainants had been traced to the applicant's telephone, to her

confession during the pre-trial investigation as well as to

circumstantial evidence (the phone calls took place subsequent to the

appointment of Mr. K. to a municipal post which the applicant had also

applied for and the calls had stopped following the pre-trial

interrogation of the applicant). The Commission further notes that the

applicant had not asked the witness in question to be heard by the

court of first instance. Moreover, the applicant was either assisted

or represented by lawyer throughout the domestic proceedings.

In these circumstances the Commission does not find that the

Court of Appeal of Vaasa acted arbitrarily by disregarding evidence

which would have been vital for the determination of the charges

against the applicant.

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.

(c)The Commission has finally considered the application insofar as

it may be regarded as pertaining to the Supreme Court's refusal of

leave to appeal. Even assuming that Article 6 (Art. 6) applies to the

leave to appeal proceedings before that court there is no appearance

of any violation of Article 6 (Art. 6) of the Convention.

It follows that this part of the application is also 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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