FOURTH SECTION

DECISION

Application no . 28145/10 Reiko NÖMMAN against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 8 October 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 21 May 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 . T he applicant, Mr Reiko Nömman , is a Finnish national who was born in 1988 and lives in Tampere . He was represented before the Court by Mr Mikko Lehti , a lawyer practising in Tampere .

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 13 August 2008 the public prosecutor pressed charges against the applicant on two counts of robbery. At the oral hearing before the District Court she presented orally alternative charges of theft and menace in respect of the both counts.

5 . On 19 February 2009 the Tampere District Court ( käräjäoikeus, tingsrätten ) convicted the applicant , in respect of count one, of theft and menace ( laiton uhkaus, olaga hot ) and , in respect of count two, of theft, and sentenced him to three months ’ imprisonment . It found in respect of count two that the applicant was not guilty of menace.

6 . The applicant and the public prosecutor appealed to the Turku Appeal Court ( hovioikeus, hovrätten ). The public prosecutor requested the court to convict the applicant o n two counts of robbery or, alternatively, as far as count two was concerned, that he be convicted of menace in addition to theft. The applicant requested in his appeal that his conviction be mitigated and that he be convicted of petty theft instead of thefts. He also requested that the prison sentence imposed on him be changed to a fine or that it be mitigated and a community service sentence be imposed. The applicant did not appeal against the conviction for menace on the first count, nor did he request the Appeal Court to hold an oral hearing. No oral hearing was requested by the prosecutor.

7 . On 23 September 2009 the Appeal Court upheld the District Court judgment but convicted the applicant , in respect of count two, in addition of menace. The prison sentence imposed on the applicant was increased by one month, the sentence being thus four months in total. No oral hearing was held during the Appeal Court proceedings.

8 . By letter dated 2 November 2009 the applicant appealed to the Supreme Court ( korkein oikeus, högsta domstolen ), complaining about the lack of an oral hearing before the Appeal Court.

9 . On 16 December 2009 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

10 . Chapter 26, section 1 3 , of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken; as in force at the relevant time ) provides:

“If the court of appeal does not hold an oral hearing, it decides the case on the basis of written trial material.”

11 . Chapter 26, section 14, of the same Code provides the following:

“A main hearing shall be held in the appeal court, if a party to a civil case or the injured party or the defendant in a criminal case so requests.

However, a main hearing need not be held for the reason referred to in subsection 1, if

(1) in a civil case amenable to settlement, the opposing party has admitted the appellant ’ s request for a change;

(2) in a criminal case only the appellant has requested a main hearing and the case is decided in accordance with the appeal;

(3) the person requesting a main hearing has been satisfied with the decision of the District Court and the decision is not changed to his or her detriment;

(4) the appeal is manifestly ill-founded;

(5) only a procedural matter is to be decided in the case; or

(6) the holding of a main hearing is for another reason manifestly unnecessary.

The provisions in subsection 1 and in subsection 2(1) and 2(3) - (6) apply, in so far as appropriate, also when hearing an appeal lodged in a non-contentious civil case.”

12 . According to Chapter 26, s ection 15, of the same Code:

“An appeal court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the district court or the findings of the district court in an inspection, or on new testimony to be admitted in the appeal court. In this event, the evidence admitted in the district court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to the same.

If the evidence referred to in paragraph (1) cannot be readmitted in the main hearing, the decision of the district court shall not be changed for that part, unless the evidence for a special reason is to be assessed differently. However, a decision on a charge may be changed in favour of the defendant of a criminal case.”

13 . Chapter 30, s ection 20, subsection 1, of the same Code provides:

“Where necessary, the Supreme Court shall hold an oral hearing where the parties, witnesses and experts may be heard and other information admitted. The oral hearing may be restricted to a part of the case on appeal.”

14 . According to Chapter 8, sections 11-13, of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa, l agen om rättegång i brottmål , Act no. 894/2001), a case may be heard and decided, with the consent of the defendant, regardless of his/her absence, if the defendant has been summoned to the hearing under such a threat and if his/her presence is not necessary for the resolution of the case. In this event, the defendant is not to be sentenced to imprisonment for more than six months. The absence of the defendant does not prevent the rejection of a charge or other demands. However, the defendant is not to be sentenced to imprisonment, unless he or s he has been heard in person in the main hearing.

COMPLAINT

15 . The applicant complained under Article 6 of the Convention that he had been convicted o n a new count in the Appeal Court proceedings during which he ha d not ha d an opportunity to defend himself in person.

THE LAW

16 . In essence, the applicant complain ed under Article 6 § 1 of the Convention about the lack of an oral hearing before the Appeal Court. Article 6 § 1 of the Convention reads in relevant parts as follows:

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

17 . The Government pointed out that, as the prosecutor had already presented the alternative charges of theft and menace before the District Court, the applicant ’ s counsel had taken a stance on them when replying to the charges. The alternative charges had therefore come up at the beginning of the District Court proceedings. After having held an oral hearing, the District Court had convicted the applicant of theft and menace on the first count and of theft on the second count.

18 . The Government noted that both the applicant and the prosecutor had appealed against the judgment of the District Court. The applicant had requested in his appeal that his conviction be mitigated and that he be convicted of petty theft instead of thefts. He had also requested that the prison sentence imposed on him be changed to a fine or that it be mitigated to a community service sentence. However, the applicant had not appealed against the conviction of menace on the first count, nor had he requested the Appeal Court to hold an oral hearing. No oral hearing had been requested by the prosecutor. The applicant had been represented by legal counsel throughout the entire proceedings.

19 . The Government pointed out that the Appeal Court had upheld the District Court ’ s judgment as far as the first count was concerned but for the second count it had convicted the applicant of menace, in addition to theft. The prison sentence imposed on the applicant had been increased by one month, inter alia , on the ground that the applicant had also been convicted of menace on the second count, but there had also been other reasons. The Government did not consider this increase of one month important enough to justify the Appeal Court organising an oral hearing in the case.

20 . The Government noted that the present case concerned interpretation of law and not assessment of the credibility of the evidence submitted. The facts of the case had been undisputed. Therefore the Appeal Court had not considered it necessary to hold an oral hearing in the present case.

21 . The applicant did not comment on the merits of the case.

22 . The Court reiterates at the outset that the entitlement to a “public hearing” set out in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be explicit or tacit, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , 21 February 1990, § 66, Series A no. 171-A; and Schuler-Zgraggen v. Switzerland , 24 June 1993, § 58, Series A no. 263).

23 . The Court points out that in proceedings before a court of first and only instance there is normally a right to a hearing (see Håkansson and Sturesson v. Sweden , cited above, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see Helmers v. Sweden , 29 October 1991, § 36, Series A no. 212-A). Accordingly, unless there are exceptional circumstances which justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance. A hearing may not be necessary, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties ’ written observations (see, inter alia , Döry v. Sweden , no. 28394/95 , § 37, 12 November 2002; Lundevall v. Sweden , no. 38629/97 , § 34, 12 November 2002; Salomonsson v. Sweden , no. 38978/97 , § 34, 12 November 2002; and mutatis mutandis , Fredin v. Sweden (no. 2) , 23 February 1994, §§ 21-22, Series A no. 283-A; Fischer v. Austria , 26 April 1995, § 44, Series A no. 312; and Elo v. Finland , no. 30742/02 , § 35, 26 September 2006).

24 . The Court reiterates that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance hearing. However, the personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions both of fact and law, Article 6 does not always entail the right to a public hearing and to be present in person. Moreover, the fact that an appellate court overturns an acquittal of a first-instance court without hearing the applicant in person does not of itself infringe Article 6 § 1 of the Convention (see Botten v. Norway , 19 February 1996, § 48, Reports of Judgments and Decisions 1996 ‑ I). Regard must be had in assessing these questions to, inter alia , the special features of the proceedings involved and the manner in which the defence ’ s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the applicant ( Belziuk v. Poland , 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II; and Kremzow v. Austria , 21 September 1993, §§ 58-59, Series A no. 268-B).

25 . Turning to the present case, the Court notes first of all that the Appeal Court did not re-characterise the facts of the case as found by the District Court. Moreover, having regard to the nature of the charges against the applicant, it was at all times open to the Appeal Court to find the applicant guilty of menace in respect of count two (compare and contrast Pélissier and Sassi v. France [GC], no. 25444/94, §§ 62-63, ECHR 1999 ‑ II).

26 . T he Court further note s that a public hearing was held at first instance, at which several witnesses were heard.

27 . As to the proceedings before the Appeal Court, the Court notes that the applicant, being aware that the prosecutor had also filed an appeal, which entailed a real risk that he might be convicted, as far as count two was concerned, of menace in addition to theft and receive a heavier sentence, did not request that an oral hearing be held before the Appeal Court (see Hermi v. Italy [GC], no. 18114/02, § 74, ECHR 2006 ‑ XII) . The Court finds that this failure to request an oral hearing clearly indicates that the applicant had waived his right to an oral hearing (see Boz v. Turkey (dec.), no. 7906/05, 9 December 2008). There is no indication of any reason why the applicant could not have requested an oral hearing, in particular as he was represented by legal counsel.

28 . According to the Court ’ s case-law, a hearing may be dispensed with if a party waives his or her right thereto and there are no questions of public interest making a hearing necessary. In the present case the Court finds that there were no such public interests involved. The Court notes that, according to Finnish law , an appeal court is under an obligation to hold a public hearing regardless of whether one has been requested if a decision on the matter turns on the credibility of the testimony admitted in the district court or on new testimony to be admitted in the appeal court. The Court considers that the grounds of appeal presented by the applicant cannot be interpreted as challenging the credibility of the testimony, nor is there any indication that he wanted to admit new testimony before the Appeal Court. Therefore, in those circumstances the Appeal Court did not have an obligation to hold an oral hearing of its own motion as it was not in the public interest. T he Appeal Court could thus examine the applicant ’ s appeal only to the extent that the issues had been invoked by the applicant.

29 . Having regard to the entirety of the proceedings and the nature of the issues submitted to the Appeal Court, the Court reaches the conclusion that there were special reasons to justify the absence of an oral hearing before the second instance. It follows that the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President