Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17925/91

by Asko KAUNISTO

against Finland

The European Commission of Human Rights sitting in private

on 8 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 14 January 1991

by Asko KAUNISTO against Finland and registered on 14 March 1991

under file No. 17925/91;

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 1959 and resident

at Turku. He is an agricultural technician by profession and is

currently serving a prison sentence in the County Prison of the County

of Vaasa. Before the Commission he is represented by Mr. Heikki Salo,

a lawyer practising in Helsinki.

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

may be summarised as follows.

On 31 May 1989 the City Court (raastuvanoikeus, rådstuvu-

rätten) of Turku convicted the applicant of inter alia having assisted

three prisoners in escaping from a prison on 3 July 1988 as well as of

aggravated robbery of a bank on 14 July 1988 committed together with

two of the prisoners, R.J.H. and O. He was sentenced to six years'

imprisonment. The City Court held three hearings, on 5 April, 3 May

and 31 May 1989. Charges were presented against eight suspects for

various offences committed in connection with and after the escape.

The hearings were held in the County Prison of Turku.

At the first hearing parts of the pre-trial investigation

record were read out by the Court. Four witnesses were heard on

behalf of the Public Prosecutor. At the second hearing eight witnesses

of the prosecution were heard. On the robbery charges the City Court

had inter alia regard to a statement by a bank employee, R.H., at the

same time one of the complainants, that she had recognised R.J.H., O. and

the applicant as the perpetrators (who were masked). It further heard

two witnesses, T. and Ã…., who stated that they had seen, at a

distance, the applicant sitting in a car together with two other men

in the vicinity two hours before the robbery.

At the third hearing two witnesses were heard on behalf of the

defence. According to witness S. the applicant could not have been in

the locality of the robbery at the time when it took place.

In its judgment the City Court found inter alia that

"(h)aving regard to what has otherwise emerged in the case the

City Court does not find the statement of witness S., who has

been called as a witness only at this stage of the [proceedings],

plausible."

The applicant's appeal to the Court of Appeal (hovioikeus,

hovrätten) of Turku was rejected on 5 April 1990. The Court of Appeal

considered it "credible" (uskottava) that R.J.H., O. and the applicant

had been together from 3 to 20 July 1988 and that on 14 July 1988 they

had stolen a car and committed the robbery. The applicant's request

for a hearing was rejected by the Court, which stated inter alia:

"The case has been considered at three hearings [before the

City Court] and the parties have then had a possibility to

present their submissions. There is no need to hear the

witnesses proposed by O. and Kaunisto [inter alia S., R.H.,

T. and Ã….] before the Court of Appeal, as their statements

do not affect the finding in the case..."

The applicant requested leave to appeal to the Supreme Court

(korkein oikeus, högsta domstolen), invoking inter alia Article 6

paras. 2 and 3 (d) of the Convention. He complained that no weight had

been given to the statement of witness S. and that, in contravention

of the presumption of innocence, the burden of proof had been resting

with him. He further requested a hearing.

Leave to appeal was refused by the Supreme Court on 17 July

1990. Before the domestic courts the applicant was assisted

by his present representative before the Commission.

COMPLAINTS

The applicant complains of a violation of Article 6 para. 1,

in conjunction with paras. 2 and 3 (d) of the Convention. Although

the prosecution presented no evidence to the contrary, the City Court

did not regard the statement of witness S. as plausible, as it had not

been presented to the Court at an earlier stage of the trial. Thus,

he had no effective right to examine witness S. It is implied in the

presumption of innocence that the burden of proof rests with the

prosecution and that the accused may present evidence at any stage

during the trial. Finnish law does not provide that evidence must be

presented to a court at a specific hearing. Even if the accused

chooses to remain silent during the proceedings this fact should not

be interpreted to his detriment. In the present case, the applicant

did not even have a possibility to examine the witness at an earlier

stage, as the two preceding hearings were devoted to the reading out

of the pre-trial investigation record and the examination of the

witnesses of the prosecution. It would have been the Supreme Court's

duty under the Convention to see to it that the procedural error in

question be rectified.

THE LAW

The applicant complains that, as the City Court gave no weight

to the statement of witness S. having regard to the late stage of the

trial at which it was presented, he was denied the effective right to

present evidence in support of his innocence. He alleges a violation

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

Convention, which read, insofar as they are relevant:

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

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

by an independent and impartial tribunal established by

law...".

"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:

... 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 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 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

p. 162).

(a) In the present case the proceedings before the courts of the

first and the second instance terminated with the judgment of the City

Court of Turku on 31 May 1989 and the judgment of the Court of Appeal

of Turku on 5 April 1990, respectively, 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.

It follows that this part of the application 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 may be regarded as pertaining to the Supreme Court's decision of

17 July 1990. The Commission observes that the applicant does not

complain about the proceedings before the Supreme Court as such, but

about the failure of that court to rectify the alleged procedural

error made by the City Court. In view of the fact that the

proceedings before the last-mentioned court terminated before the

entry into force of the Convention with regard to Finland, no

obligation for the Supreme Court to act in the manner required by the

applicant can be inferred from the Convention. Even assuming that

Article 6 (Art. 6) applies to the leave to appeal proceedings before the

Supreme Court the Commission therefore finds no appearance of any

violation of the provisions invoked by 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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KAUNISTO v. FINLAND

KAUNISTO v. FINLAND

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