FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46601/99 M.S. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 4 May 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 11 May 1998 and registered on 8 March 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court's partial decision of 11 December 2001,

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 is a Gambian citizen, who was born in 1955 and lives in Gambia. He is represented before the Court by Mr Daryl Taylor, a translator from Helsinki, Finland. The respondent Government are represented by Mr Arto Kosonen, Agent of the Government of Finland, 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 was convicted of aggravated sexual assault on his then 15 year-old stepdaughter, by a judgment of the District Court ( käräjäoikeus, tingsrätt) of Hyvinkää issued on 27 September 1996. He was sentenced to eleven months' imprisonment and ordered to pay compensation of 30,000 Finnish marks (FIM; 5,045 euros (EUR)) to the complainant. The case was heard in camera before the District Court and the court documents were ordered to be kept secret until 27 September 2006.

The alleged offence (principally forced oral sex) had taken place repeatedly in the family home over a period of seven weeks beginning on 26 December 1994.

The pre-trial investigation of the alleged offence began when the complainant, i.e. the applicant's stepdaughter, reported it to the police on 14 August 1996. Prior to this, earlier the same month, she had mentioned the alleged offence on separate occasions to two confidantes.

The District Court heard the testimony of the complainant and of the aforesaid confidantes, as well as that of the defendant's wife and of others more distantly connected with certain details pertaining to the matter. The defence disputed that the complainant and the applicant had ever been alone together in the place where the offence was alleged to have occurred. The evidence of the applicant's wife did not support the applicant's claims in this respect.

The District Court also had before it a medical certificate issued by the physician who attended to the complainant because of an illness she had. This medical certificate charted the progress of her illness over the period from late 1992 until 1995. Although the physician was unable to draw from his observations any inference concerning the alleged offence, the District Court, according to the applicant, found that the medical certificate supported the complainant's view in the matter.

On 28 October 1996 the applicant appealed to the Court of Appeal ( hovioikeus, hovrätt ) against the District Court's judgment, annexing his wife's statement in which she changed her position so as to support the applicant. An oral hearing was also requested.

On 26 November 1996, i.e. after the expiry of the time-limit for adducing written submissions to the Court of Appeal pursuant to Chapter 26, section 25 of the Code of Judicial Procedure, the applicant's ex-wife submitted a letter to the Court of Appeal, retracting her previous submission. She explained that she had instigated divorce proceedings and could now think more clearly about the events.

In its judgment of 1 July 1997 the Court of Appeal, without having an oral hearing, upheld the District Court's judgment.

The applicant learned about his ex-wife's submission of 26 November 1996 and of her changed position from the Court of Appeal's judgment, in which it was stated as follows:

“[The applicant's ex-wife] has, in her statement submitted to the Court of Appeal, announced that she wants to retract her earlier written statement which was annexed to [the applicant's] letter of appeal and which she had, in her view, signed under heavy pressure. Therefore, there is no reason to doubt that her statement given at the District Court was not accurate. It is manifestly unnecessary to request [the applicant's] comments on the statement. ... Thus, the request to hold an oral hearing is rejected as unfounded.”

The applicant applied to the Supreme Court ( korkein oikeus, högsta domstolen ) for leave to appeal raising, inter alia , questions concerning the overall evaluation of the evidence. The Supreme Court refused the applicant leave to appeal on 13 November 1997.

After having served his sentence for his offence the applicant was expelled from Finland. The expulsion was enforced in the autumn of 1998.

B. Relevant domestic law

Chapter 17 section 11 subsection 1 of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken , as in force at the relevant time; 571/1948) provided that a court of first instance may not use in evidence written affidavits, submitted for the purposes of pending or incoming proceedings, unless this is specifically provided for in the law or authorised by the court. Subsection 3 (as in force at the relevant time; 1052/1991) provided that [i]n case a superior court of law relies on an affidavit referred to in subsection 1 and the court finds that attention must be paid to it, the person who has given the affidavit shall be heard as a witness either before the superior court or before a court of first instance designated by the superior court.

According to Chapter 26, section 5 (as in force at the relevant time; 661/1978) of the Code of Judicial Procedure, the Court of Appeal had the possibility, on special grounds, to take into account written submissions or other documents provided by a party to the Court after the expiry of the time-limit.

According to Chapter 26, section 6 (as in force at the relevant time; 661/1978) of the Code of Judicial Procedure, if the Court of Appeal took into account such evidence submitted after the expiry of the time-limit, the Court of Appeal had to request the parties to submit written observations unless it was manifestly unnecessary.

COMPLAINTS

The applicant complains, under Article 6 § 1 of the Convention, that he did not have a fair trial in the criminal proceedings against him as he was not given an opportunity to respond to a statement, dated 26 November 1996, submitted by his ex-wife without his knowledge to the Court of Appeal.

THE LAW

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial as he was not given an opportunity to respond to a statement submitted by his ex-wife without his knowledge to the Court of Appeal. Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing...”

The Government maintain that i n the present case the affidavit and its withdrawal had no relevance for the assessment of the case by the Court of Appeal. The District Court's judgment was based on a significant amount of other evidence and the Court of Appeal's judgment was based on the evidence as a whole. The Government point out that affidavits are not a normal means of submitting evidence under domestic law.

In the Government's opinion the affidavit signed by the applicant's ex-wife and attached to the applicant's appeal documents, which denied the possibility that the applicant and his step-daughter could have been alone together at the relevant times, was made on the applicant's initiative, as was her statement to the Supreme Court.

The Government recall that as a rule it is for the national courts to decide what evidence they choose to hear and to assess the evidence before them. In the present case, the Court of Appeal stated in its judgment that there was no reason to doubt the statement given by the applicant's ex-wife before the District Court. This indicated that the Court of Appeal found the original affidavit, which indeed was later withdrawn, unreliable. Thus, the national court clearly stated its opinion with reference to this particular evidence. In these circumstances the non-communication of the applicant's ex-wife's withdrawal disclosed no lack of fairness. Furthermore, the above-mentioned decision of the Court of Appeal did not result in any deviation from the District Court's judgment to the applicant's disadvantage.

The Government further claim that the applicant had an opportunity to comment on the withdrawal and that he did in fact do so when requesting leave to appeal to the Supreme Court. On that occasion, the applicant had a possibility to submit further observations in respect of the withdrawn affidavit and also to invoke the fact that he had not been informed of the withdrawal nor requested to submit observations thereon. Accordingly, the Supreme Court must be regarded as taking the non-communication into account when deciding on the applicant's request for leave to appeal.

The applicant submits that the principle of equality of arms required that he be given an opportunity to evaluate the relevance of the statement and its withdrawal, and to comment on this if he considered it proper to do so. The Court of Appeal was not free to set aside this fundamental principle of fair proceedings. In the applicant's opinion the Court of Appeal simply chose to uphold one version of the testimony of a wholly unreliable witness, whereas the court should have excluded that witness's testimony entirely. The applicant's representative claims that the affidavit was made entirely voluntarily on the part of the applicant's then wife.

The applicant maintains that the position taken in the matter by the applicant's then wife was also considered by the District Court to have damaged the applicant's credibility. The applicant states that he was never alone with his stepdaughter in the apartment. This claim was examined by the District Court at some length, and it was discredited based on the evidence presented by the applicant's then wife. However, although the latter evidence was later shown to be manifestly unreliable, the Court of Appeal – in the knowledge that the said evidence had been reversed three times at that stage – offered no re-evaluation of the applicant's damaged credibility. In view of the character of the evidence upon which the conviction was based, this assessment of credibility was crucial to the outcome.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under Article 6 § 1 of 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 the remainder of the application admissible, without prejudicing the merits of the case.

Michael O'Boyle Nicolas Bratza Registrar President