FOURTH SECTION

DECISION

Application no . 53329/10 Jari Anssi Juhani KOSKI against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 19 November 2013 as a Chamber composed of:

Ineta Ziemele , President , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges , and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 16 September 2010 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Jari Anssi Juhani Koski , is a Finnish national who was born in 1976 and lives in Kokkola . He was represented before the Court by Mr Hannu Laakso , a lawyer practising in Kokkola .

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 10 September 2008 the applicant was convicted of an aggravated accounting offence ( törkeä kirjanpitorikos , grovt bokföringsbrott ) and aggravated dishonesty by a debtor ( törkeä velallisen epärehellisyys , grov oredlighet som gäldenär ) by the Kokkola District Court ( käräjäoikeus , tingsrätten ) for which he was given a suspended sentence of one year and two months and ordered to pay damages.

5. On 10 October 2008 the applicant appealed to the Vaasa Appeal Court ( hovioikeus , hovrätten ).

6. On 10 March 2009 the Appeal Court summoned the applicant to attend the oral hearing which was to take place on 22 April 2009. The summons stated that in case of his absence without a valid excuse, his appeal would be discontinued. A valid excuse meant circumstances of force majeure or an illness certified by a medical certificate. The Appeal Court was to examine whether the excuse was valid.

7. On 21 April 2009 the applicant ’ s attorney sent to the court a fax which included a medical certificate, dated 21 April 2009, stating that the applicant was suffering from gastroenteritis and was probably not capable of travelling the next day . According to the medical certificate the applicant would not be able to work from 21 April to 23 April.

8. On 22 April 2009 the applicant did not attend the hearing. Nor was his attorney present. The attorney did not indicate any reasons for his absence.

9. On 22 April 2009 the attorney sent another fax to the court, stating that the applicant was still sick and that he had to visit the restroom every half an hour. The trip to the court house was not possible. The applicant had visited the doctor also on 22 April 2009. The doctor had issued a new medical certificate, stating that severe gastroenteritis might endanger a patient ’ s state of health. This medical certificate was also dated 21 April 2009.

11. On 21 May 2009 the applicant notified the Appeal Court in writing that he had had a valid excuse for his absence and requested that his case be reopened.

12. On 7 October 2009 the Appeal Court rejected the applicant ’ s request. The court noted that it could consider seriously only a medical certificate that indicated detailed grounds for believing that a person ’ s health w ould be endangered if he were ordered to attend a hearing , regardless of his illness. The criteria for a valid excuse had been set high in the established case-law. The Appeal Court found that the medical certificates submitted to the court by the applicant did not indicate the general severity of the applicant ’ s symptoms, nor show that his health would have been endangered if he were to appear in court. Therefore, the Appeal Court concluded that the applicant had not shown that he had a valid excuse that prevented him from appearing at the oral hearing on 22 April 2009.

13. On 7 December 2009 the applicant appealed to the Supreme Court ( korkein oikeus , högsta domstolen ), reiterating the grounds of appeal relied on before the Appeal Court.

14. On 19 March 2010 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

15. According to Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ; Act n o. 381/2003), if the appellant is absent from the main hearing, the appeal shall be discontinued.

16. According to Chapter 26, section 22, of the same Code, if the case has been dismissed without consideration of the merits because of the absence of the appellant, but he or she had a valid excuse that he or she was not able to announce in time, the appellant shall have the right to have the case reopened on the basis of the same appeal, by notifying the Appeal Court in writing within thirty days of the dismissal of the case. If the appellant cannot prove a valid excuse, the appeal shall not be considered .

17 . According to Chapter 12, section 28, subsection 1, of the same Code , a person shall have a valid excuse, if he or she due to illness or an interruption in traffic or communications is prevented from heeding the summons to appear in court, to submit a written response or statement or to fulfil another duty imposed on him or her in the proceedings.

18. The Supreme Court has taken a stand on valid excuse in its judgments of 1 April 2003 and 22 August 2001 ( KKO :2003:28 and KKO:2001:73 ). It has found, inter alia , that an illness is a valid excuse only when a person cannot attend the oral hearing without endangering his or her health. A person who needs hospital care usually has a valid excuse. Inconvenient temporary symptoms of minor illnesses can also form a valid excuse.

19 . The Supreme Court has also taken a stand on discontinuation of cases in its recent case-law. These cases have concerned applicants who had been summoned to appear in person before the Appeal Court but had failed to so while their legal counsel had been present. The Supreme Court has found, inter alia , that in such cases the Appeal Court should examine in each case separately whether it is possible and necessary to examine the appeal on some parts despite the absence of the applicant from the oral hearing. For example issues concerning criminal sanctions could be examined without the applicant ’ s presence ( KKO :2012:49 , KKO:2012:22 and KKO:2011:30 ).

COMPLAINT

20. The applicant complained under Article 6 of the Convention that his right to a fair trial and to defend himself in person or through legal assistance of his own choosing ha d been violated as his appeal in the Appeal Court had been discontinued due to the fact that he ha d not attend ed the oral hearing on 22 April 2009.

THE LAW

21. The applicant complained under Article 6 of the Convention about a lack of a fair trial and an inability to defend himself in person or through legal assistance of his own choosing .

22. Article 6 § 1 of the Convention reads in the relevant parts as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23 . Article 6 § 3 of the Convention reads in the relevant parts as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

... ”

24 . The Government noted that the applicant had been informed of the oral hearing in time and that the invitation had included the appropriate legal cautions concerning absence. The applicant had thus been aware of the negative consequences of his absence. A valid excuse had no exhaustive definition in Finnish law but it had been left to the discretion of the courts, whose interpretation had been rather narrow. The Supreme Court had taken a stand on this issue twice. The decision of 22 April 2009 by the Appeal Court had been within its discretionary powers.

25. The Government pointed out that the Appeal Court had on the previous day asked the applicant ’ s counsel to submit a second medical certificate confirming that the applicant ’ s illness had been qualified as so severe that to travel to the court would endanger his health. The applicant ’ s counsel had informed the court on the following day that the doctor had refused to write such a certificate because travelling while suffering from gastroenteritis would not normally endanger the applicant ’ s health or life. The Government stressed that the second medical certificate had stated that severe gastroenteritis could endanger a patient ’ s health but had not confirmed that the applicant was suffering from severe gastroenteritis. In the medical record the doctor had noted, inter alia , that the applicant ’ s general condition had been good and that he had had no fever. A person whose general condition was diagnosed as good did not have a valid excuse to be absent from a court hearing. In order to have constituted a valid excuse, the medical certificate should have clearly stated that the applicant had not been capable of travelling to the court to attend the hearing due to vomiting and diarrhoea verified by the doctor himself. The medical certificates had not reported any weakening of the applicant ’ s general condition, nor reported constant vomiting or diarrhoea . Gastroenteritis did not endanger public health to the extent that it would require isolation of the patient.

26. The Government maintained that in this case the national authorities were better placed to evaluate the severity of the applicant ’ s illness. The domestic legislation also provided a possibility to re-open a case if an appellant had not been able to announce a valid excuse in time. The applicant had used this possibility but had failed to provide new evidence of his state of health on 22 April 2009.

27 . The applicant noted that he had visited the doctor both on 21 and 22 April 2009. The gastroenteritis which had been diagnosed on 21 April had still been ongoing the following day. His condition had been considered as possibly being such as to endanger his health. It was clear from general life experience that if a patient was vomiting and continuously showing signs of diarrhoea , he would not be able to travel nor appear as a witness before a court. It was unreasonable to demand that a doctor mention this explicitly in the medical certificate.

28. The applicant argued that the type of illness he had been suffering from required him to remain constantly in the immediate vicinity of sanitary facilities. Vomiting caused nausea which hampered the patient ’ s ability to stand or sit up. It was unreasonable to require the doctor, after having diagnosed the illness and its symptoms, explicitly to mention these self ‑ evident facts in a medical certificate.

29 . The Court points out that it is of capital importance that a defendant should appear in the trial hearing, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim, whose interests need to be protected, and of the witnesses. The legislature must accordingly be able to discourage unjustified absences (see Poitrimol v. France , 23 November 1993, § 35, Series A no. 277 ‑ A). The personal appearance of the defendant does not assume the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria , 19 December 1989, § 106, Series A no. 168; and Cani v. Albania , no. 11006/06 , § 50, 6 March 2012 ). However , it is also of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Lala v. the Netherlands , 22 September 1994, § 33, Series A no. 297 ‑ A; and Pelladoah v. the Netherlands , 22 Sep tember 1994, § 40, Series A no. 297 ‑ B). The latter interest prevails and consequently the fact that a defendant, in spite of having been properly summoned, does not appear, cannot – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 of the Convention to be defended by counsel (see Lala v. the Netherlands , cited above, § 33; and Pelladoah v. the Netherlands , cited above, § 40). It is for the courts to ensure that a trial is fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the accused in his absence is given the opportunity to do so (see Lala v. the Netherlands , cited above, § 34; and Pelladoah v. the Netherlands , cited above, § 41).

30 . The right of everyone charged with a criminal offence to be defended effectively by a lawyer is one of the basic features of a fair trial. An accused does not lose this right merely on account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended (see Van Geyseghem v. Belgium [GC], no. 26103/95 , § 34 , ECHR 1999 ‑ I.).

32. Turning to the present case, the Court notes that the applicant was summoned, as an appellant, to appear in person before the Appeal Court on 22 April 2009. It was clearly indicated in the summons that , in case of the applicant ’ s absence without a valid excuse, his appeal would be discontinued. On that day neither the applicant nor his legal counsel attended the Appeal Court hearing and consequently the case was discontinued. The outcome may have been different had the legal counsel been present (see paragraph 19 above). As the legal counsel was not present and could therefore not defend the applicant in his absence, the main question is whether the applicant ’ s absence and its consequences rendered the proceedings unfair under Article 6 § 1 of the Convention.

33 . The Court notes that the applicant was to appear in person before the Appeal Court. He provided two medical certificates to the court concerning his medical condition. The first, dated 21 April 2009, stated that the applicant was suffering from gastroenteritis and that he was probably not capable of travelling the next day . The second, also dated 21 April 2009, stated that severe gastroenteritis might endanger a patient ’ s state of health . Both medical certificates were thus written in the conditional. As the Government pointed out, the second medical certificate did not state that the applicant ’ s state of health would be endangered as, according to the doctor, travelling while suffering from gastroenteritis could not be regarded as endangering his health. There is no evidence either that the applicant would have suffered from any inconvenient temporary symptoms of a minor illness. On the contrary, it appeared from the applicant ’ s medical record that his general condition was good and that he had no fever.

35 . Accordingly, the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President