F OURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20388/02 by Jussi Mikael UOTI against Finland

The European Court of Human Rights (Fourth Section), sitting on 14 September 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr L. Garlicki , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović , Mr D. Spielmann , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 17 May 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jussi Uoti , is a Finnish national, who was born in 1964 and lives in Turku . He is represented before the Court by Mr Jarmo Hakanen , a lawyer practising in Turku .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents , may be summarised as follows.

At the end of 1995 the police informed the applicant that he was  suspected of offences, including dishonesty as a debtor ( velallisen epärehellisyys , oredlighet som gäldenär ). On 12 December 1995 the applicant submitted his written account to the police contesting the allegations. In 1996 he was interrogated by the police on several occasions and later charges were brought against him.

The trial before the District Court ( käräjäoikeus , tingsrätten ) of Helsinki took place from 16 October 1996 to 29 January 1998 involving 47 hearings. On 29 January 1998 the District Court convicted the applicant of four counts of dishonesty as a debtor and four counts of aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) and sentenced him to four years and two months ’ imprisonment.

On 30 April 1999 , after two extensions of approximately two months in the time-limit for lodging the appeal, the applicant appealed to the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki against the whole judgment. In his letter of appeal he maintained (pp. 42-45), inter alia , that written statements of a witness G., who had not been interrogated during the pre-trial investigations or heard before the District Court, should not have been taken into account as he had not had a possibility to defend against that important item of evidence. In a subsequent letter to the Court of Appeal he also requested the court to hear three witnesses (A, B and C) and to listen to some recordings of telephone conversations in order to prove that the applicant ’ s brother was the only person involved. The applicant wanted to show by hearing A., a graphologist, that some documents were forged and by hearing B. and C., who had recorded the telephone conversations, that the content of those conversations allegedly proved his innocence.

On 31 October 2000 the Court of Appeal held a preparatory hearing and issued on that day a decision in which it, inter alia , refused to hear G. as a witness. It stated that it would give reasons for its refusal later in the judgment. It also refused to hear A, B and C and to listen to the recordings.

On 30 March 2001 the Court of Appeal convicted the applicant on six counts of dishonesty as a debtor, four counts of aggravated tax fraud and five counts of aiding and abetting accounting offences ( kirjanpitorikos , bokföringsbrott ) and sentenced him to five years and eight months ’ imprisonment.

As regarded the witness G. the Court of Appeal held in a procedural decision contained in the judgment, that:

“The Court of Appeal notes that no request to hear G. as witness was made in the District Court although the documents, relating to the plan to transfer moneys from the “bank group I. ”, had been presented in the hearings of 29 May and 10 June 1998 ... Also [the applicant ’ s brother, who was a co-defendant ] relied as written evidence on [some] documents drawn up by G. without requesti ng that G. be heard as a witness ...

The import of the documents drawn up by [G.] can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed to be heard as a witness and the fact that the parties in the Court of Appeal have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents.

The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents would have been drawn up by someone other than G . ...

The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I. ” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant]. The question whether G. himself thought that he was involved only in legal investment activities is therefore not relevant.

The documents drawn up by G. are however relevant in assessing ... [the applicant ’ s] possible guilt for the offence of dishonesty by a debtor ... However, a s becomes manifest in the reasons given in considering the charges , the Court of Appeal has not decided the matter entirely basing itself on the documents in question. The court has instead assessed the value of the documents in an overall context , [ kokonaisyhteydessä ] such that G. cannot have anything relevant to say .

The Court of Appeal has heard the witness S., as requested by [the applicant ’ s brother ], about the events relating to the documents. The testimony of S., which in the [the applicant ’ s brother ’ s ] opinion prove the content of the discussions with G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness, either.”

As regard the applicant ’ s request to hear A, B and C and to listen to the recordings of the telephone conversations, the Court of Appeal further held, that:

“The hearing of ... A, B and C ... has been regarded as unnecessary.

...

It has also not been necessary to listen to the recordings submitted by [the applicant] as the National Bureau of Criminal Investigations [ keskusrikospoliisi , centralkriminalpolisen ] has transcribed them into writing. For this reason it is also unnecessary to hear B and C as witnesses. The Court of Appeal has received written reports from the National Bureau of Criminal Investigations concerning, inter alia , the forgeries alleged by [the applicant], which further supports the view that it is unnecessary to hear A as a witness.”

On 28 May 2001 t he applicant sought leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen ). He complained about, inter alia , the refusal to hear G., A, B and C and to listen to the telephone recordings. He also complained that the Court of Appeal ’ s decision of 31 October 2000 not to hear G. violated the presumption of innocence. He did not request to hear G. but maintained that G. ’ s written statements should not be taken into account. He also complained about the excessive length of the criminal proceedings. On 10 September 2001 the applicant submitted an additional letter of appeal to the Supreme Court.

On 5 December 2001 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

According to Chapter 26, section 7 of the Code of Judicial Procedure (661/1978), as in force at the relevant time, the Court of Appeal was to hold an oral hearing when necessary.

According to Chapter 26, section 8 of the Code of Judicial Procedure (661/1978), as in force at the relevant time, the Court of Appeal could not change a lower court ’ s conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant ’ s need for legal protection.

The provisions concerning the Court of Appeal ’ s duty to hold an oral hearing were amended (165/1998) with effect from 1 May 1998 . The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; 689/1997; in force as from 1 October 1998 ). In the present case the above mentioned old provisions were applied.

According to the new Chapter 26, Section 15 of the Code of Judicial Proceedings (165/1998) the Court of Appeal 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 on new testimony to be admitted in the Court of Appeal. In this event, the evidence admitted in the District Court shall be readmitted ... in the main hearing, unless there is an impediment to this occurring .

COMPLAINTS

The applicant complains under Article 6 of the Convention that :

1. t he refusal of the Court of Appeal to hear G. deprived him of a right to obtain the attendance and examination of witnesses on his behalf (Article 6 § 3(d) of the Convention). He maintains that G. was of crucial importance as the documents allegedly drawn up by him were decisive in leading the Court of Appeal to conclude that the re had been an intentional plan /a conspiracy to commit the offences. G. managed all th e companies which were accused of transferring assets illegally abroad and could have provided crucial information as a witness. G. had not even been heard in the pre-trial investigations which made it impossible to verify the content of the docum ents allegedly drawn up by him. The Court of Appeal ’ s decision on 31 October 2000 not to hear the witness G. also violated the presumption of innocence and showed a preconceived attitude towards the applicant concerning the alleged conspiracy and guilt ;

2. the length of the criminal proceedings against him exceeded a “reasonable time”, lasting almost six years; and

3. the refusal to hear A, B and C and to listen to certain recordings of telephone conversations violated Article 6 § 3 (d) of the Convention, as it deprived him of a possibility to prove that he was not accountable for the alleged plan to commit the offences.

THE LAW

1. The applicant complains that the Court of Appeal ’ s refusal to hear witness G. deprived him of a right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, indicated a preconceived attitude towards him and violated the presumption of innocence. He invokes Articles 6 §§ 1, 2 and 3 (d) of the Convention which read, insofar as relevant, as follows:

“1. 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 ...

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:

...

(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 Court considers that it c annot, on the basis of the case- file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 6 § 1 of the Convention (see above) about the length of the criminal proceedings against him.

The Court notes that the applicant was “substantially affected” (see Corigliano v. Italy , judgment of 10 December 1982 , Series A no. 57, § 34) from December 1995 when the police informed the applicant of their allegations and that the District Court ’ s judgment was delivered on 29 January 1999 . The Court of Appeal ’ s judgment was delivered on 30 March 2001 , i.e. two years, two months and one day later. The Supreme Court issued its decision on 5 December 2001 , i.e. eight months and six days later. Taking into account the complexity of the case, the fact that the case appears to have progressed without interruption and that there is no appearance of any unjustified periods o f inactivity, none of the above- mentioned periods may be regarded as excessive in length when viewed separately. The Court has reached the same conclusion as regards the overall length of the criminal proceedings of approximately six years. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains under Article 6 § 3 (d) of the Convention (see above) about the refusal to hear A, B and C and for the recordings of the telephone conversations.

The Court notes that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party (see Rowe and Davis v. the United Kingdom [GC] , no. 28901/95, § 60, ECHR 2000-II). Further, a ll the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. As a rule, a conviction should not be based on the testimony of a witness whom the accused has not had an opportunity to challenge and question. However, Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a particular witness .

In the present case the Court observes that the testimony of B and C and the telephone recordings were regarded by the applicant as providing proof of the content of some telephone conversations between the applicant and his brother, a co-defendant. The applicant had also proposed witness A. be heard in order to show that some documents were forged. The Court notes that it appears from the Court of Appeal ’ s decision that the National Bureau of Investigations had conducted investigations into both questions and submitted its reports, together with a transcript of the telephone conversations, to the court which reached the assessment, in the exercise of its appreciation of the relevance of the evidence, that it was not necessary to go into those matters further. The examination of the case-file does not disclose any appearance of a violation of a fair trial or a violation of the principle of equality of arms in these respects. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning the Court of Appeal ’ s refusal to hear witness G.

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President