FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48999/99 by Leevi IVANOFF against Finland

The European Court of Human Rights (Fourth Section), sitting on 22 June 2004 as a Chamber composed of:

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

Having regard to the above application lodged on 29 April 1999,

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

The applicant, Mr Leevi Ivanoff, is a Finnish national, who was born in 1942 and lives in Helsinki. He is represented before the Court by Mr Jukka Sankamo, a lawyer practising in Kotka. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

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

The applicant ran a snack bar together with his wife until 20 December 1993 when it was damaged by a fire.

On 13 October 1997 the District Court of Kotka ( käräjäoikeus, tingsrätten ) convicted the applicant of aggravated vandalism and aggravated fraud as he was found to have set the snack bar on fire and to have claimed and received compensation from an insurance company. He was sentenced to one year’s suspended imprisonment and ordered to pay 276,360 Finnish marks (equivalent to approximately 46,500 euros) in compensation to the insurance company.

Both the applicant and the public prosecutor appealed to the Kouvola Court of Appeal ( hovioikeus, hovrätten ). The applicant requested an oral hearing. He also sought that an expert opinion on the reasons why the snack bar caught fire be ordered by the court.

On 9 March 1998 the applicant was summoned to an oral hearing to be held before the Court of Appeal on 20 May 1998. According to the summons, the oral hearing was limited only to the fire which had started from the storage room of the snack bar (“fire 2”); another fire (“fire 1”) had started from the part of the stand where the snacks were prepared. The Court of Appeal stated that it would call three of the prosecution witnesses, who had been heard before the District Court (police officer H., investigator L. and fireman T.).

In her letter of 18 May 1998 to the Court of Appeal, the applicant’s counsel requested that S., who had installed the electricity for the snack bar, be called to give evidence at the oral hearing about the reasons why the above-mentioned “fire 1” had started. S. had also been heard before the District Court.

On 20 May 1998 before the hearing started, the applicant’s counsel asked the Court of Appeal’s referendaire whether the applicant could call witnesses who would give evidence about “fire 1” and about the reasons why the snack bar caught fire and how the fire then spread to the whole building. The referendaire did not find it possible, nor desirable, that such witnesses be heard as the hearing was limited only to “fire 2”.

At the beginning of the hearing, a timetable of the proceedings was distributed to the parties according to which the hearing was limited only to “fire 2”. The above-mentioned prosecution witnesses were heard. The defence witness, S., was not. According to the applicant the statements made by the prosecution witnesses concerning “fire 1” as well as the reasons why the snack bar caught fire were accepted by the court. According to the Government no such evidence was given before the Court of Appeal.

On 13 August 1998 the Court of Appeal upheld the District Court’s judgment, refusing the applicant’s request for an expert opinion. In its reasoning the court found, inter alia , as follows:

“What is said above shows that the fire which occurred in the storage room [“fire 2”] was started deliberately. This strongly supports the allegation that the fire which occurred in the room where the snacks were prepared [“fire 1”] was also deliberate, in particular, as it is unlikely that the fire would have started from the electrical devices or the electricity wires which were situated on the roof of the preparation room [“fire 1].”

On 11 November 1998 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law and practice

According to chapter 26 (661/1978), section 7 (1) of the Code of Judicial Procedure, as in force at the relevant time, the Court of Appeal shall, where necessary, hold an oral hearing for the purpose of hearing parties, witnesses and experts and receiving other evidence. The oral hearing may be limited to cover part of the issues raised in the appeal.

COMPLAINTS

1. The applicant complains, under Article 6 § 1 of the Convention, about the unfairness of the Court of Appeal proceedings as the Court of Appeal called only prosecution witnesses to the hearing and, even though it had limited the hearing only to “fire 2”, accepted evidence also in respect of “fire 1” and as to the general reasons why the fire had started.

2. He also complains, under Article 6 § 3 (b) of the Convention, that he did not have adequate time and facilities for the preparation of his defence as his counsel could not prepare herself to cross-examine the witnesses in respect of all of the evidence heard before the Court of Appeal.

3. He further complains, under Article 6 § 3 (d) of the Convention, that he was not afforded a right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him as the prosecution witnesses were called ex officio by the Court of Appeal to the hearing while the attendance of his own witness, S., was refused.

THE LAW

The applicant complains under Article 6 §§ 1, 3 (b) and 3 (d) of the Convention about various aspects of the Court of Appeal proceedings.

Article 6 provides, in relevant part:

“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 ...

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

(b) to have adequate time and facilities for the preparation of his defence;

(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”

A. Preliminary objection concerning Article 6 § 3 (b) and 3 (d)

The Government argue that at no stage of the domestic proceedings did the applicant allege that he did not have adequate time or possibility to prepare his defence or that S. should be heard as a witness. According to the records of the Court of Appeal hearing, there were no obstacles to holding the hearing. Thus, the applicant had not presented any such objections in respect of which the Court of Appeal should have taken a position. Nor did he raise these issues before the Supreme Court.

Thus, he has not exhausted the domestic remedies available to him as to the complaints under Article 6 § 3 (b) and (d) of the Convention. Therefore, these complaints should be declared inadmissible.

The applicant maintains that prior to the oral hearing he requested that S. should also be heard before the Court of Appeal as to “fire 1”. At the beginning of the hearing, he requested that S. be heard about the reasons for “fire 1” and how the fire had spread to the whole building. However, his request was denied. The applicant had no other choice than to accept the situation.

Thus, he has exhausted domestic remedies, as he raised the complaints submitted to the Court also before the Supreme Court.

1. The Court recalls that it under Article 35 § 1 of the Convention may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

As to the complaint under Article 6 § 3 (b) of the Convention, the Court notes that the parties have not submitted the minutes from the Court of Appeal hearing and it is therefore not clear which issues were raised before it. Nevertheless, it is clear from the appeal documents that the applicant did not in the Supreme Court plead that he did not have adequate time and facilities for the preparation of his defence.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. As to the complaint under Article 6 § 3 (d), the Court notes that the applicant in his written submission of 18 May 1998 requested that he be allowed to call S. as a witness to the Court of Appeal hearing. As noted above, the Court does not have the minutes from the hearing at its disposal and it is therefore not clear whether he maintained his request at the hearing.

In the appeal documents to the Supreme Court the applicant underlined that the Court of Appeal only called prosecution witnesses and that evidence was in fact also received on points other than on the cause of “fire 2”.

The Court considers that although the applicant did not expressly argue that the Court of Appeal had rejected his request that S. be heard as a witness, he by implication argued that witnesses for the defence had not been allowed before the Court of Appeal. Thus, he has complied with the requirements set out in Article 35 § 1 of the Convention.

Accordingly, the Court rejects the Government’s preliminary objection that the applicant has not exhausted domestic remedies.

B. The remaining complaints under Article 6 §§ 1 and 3 (d)

The applicant complains, under Article 6 §§ 1 and 3 (d) of the Convention, that the proceedings in the Court of Appeal were unfair as the court refused his request that the defence witness S. be heard and called only prosecution witnesses to the hearing and, even though it had limited the hearing to “fire 2”, also accepted evidence also in respect of “fire 1” and the general reasons why the fire had started.

The Government argue that in his writ of appeal the applicant requested an oral hearing without, however, presenting any grounds for his request. Nor did he indicate that he wished to hear witnesses. The day before the hearing, the applicant informed the Court of Appeal that he wished to hear a witness on facts other than those to be addressed in the hearing. He did not, however, indicate that witness S. had such information on the cause of “fire 1” that had not already been established in the District Court.

The Government submit that the public prosecutor took the view that the case could be decided in written proceedings on the basis of evidence presented before the District Court. However, the Court of Appeal found it necessary to hold an oral hearing for the purpose of establishing the cause of the fire in the storage room (“fire 2”). The Court of Appeal considered that adequate evidence had been adduced before the District Court for the establishment of the other relevant facts relating to the case.

In the Government’s view, limiting an oral hearing to one issue only cannot as such violate the equality of arms principle. The evidence adduced in the hearing was taken into account insofar as it concerned the facts subject to the hearing, and in all other respects the court decided the case on the basis of evidence submitted earlier. The statement of witness S., who was heard at the District Court hearing, as well as the other evidence were taken into account by the Court of Appeal when it decided the case. N othing indicates that the Court of Appeal at the hearing accepted evidence falling outside the scope of “fire 2”. This is supported by the reasoning in the judgment, which in essence was based on the establishment of the cause of “fire 2”. The Court of Appeal found that the storage room had been set on fire intentionally by the applicant. According to the witness statements there was no possibility that “fire 2” was caused by “fire 1”. The Court of Appeal further found this to be a strong indication of the alleged fact that “fire 1” had also been caused intentionally. Thus, the Court of Appeal adopted the conclusion drawn initially by the District Court. It found that it sufficed for a conviction that the fire in the storage room, “fire 2”, was caused intentionally. Therefore, the reasons for “fire 1” had no independent relevance, and it was not necessary for the Court of Appeal to receive evidence in respect of “fire 1”.

The applicant submits that, in spite of the fact that in the invitation to the oral hearing and in the hearing plan the Court of Appeal had limited the oral hearing to cover “fire 2”, it allowed the prosecution witnesses H., L. and T. to give evidence as to “fire 1”, as to why the snack bar caught fire and as to how the fire then spread to the whole building. The applicant’s counsel had neither prepared any questions to the witnesses nor arguments as to topics other than “fire 2”. The Court of Appeal completely refused to hear the defence witness S.

It took the applicant by surprise when the Court of Appeal based its judgment on the statements by prosecution witnesses H., L. and T., who were also heard before the Court of Appeal, as to “fire 1”. The Court of Appeal considered that these statements showed that the snack bar had been set on fire by “fire 1”.

The applicant concludes therefore that the Court of Appeal’s judgment was based on matters as to which he, unlike the public prosecutor, had been denied the opportunity to present evidence at the oral hearing.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 §§ 1 and 3 (d) of the Convention;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President