FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42059/98 by Vesa-Ville EEROLA against Finland

The European Court of Human Rights (Fourth Section), sitting on 12 November 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 30 June 1998,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Vesa-Ville Eerola , is a Finnish national, who was born in 1966 and lives in Turku . He was represented before the Court by Mr Matti Wuori , a lawyer practising in Helsinki. The respondent Government were represented by their Agent, Mr Arto Kosonen , Director in the Ministry for Foreign Affaires .

A. The circumstances of the case

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

The applicant was charged with aggravated fraud and other offences before the District Court ( käräjäoikeus , tingsrätten ) of Porvoo . The District Court was composed of a presiding judge and three lay judges. There were eight hearings before the District Court. The presiding  judge changed after the first hearing at which one complainant had been heard. Altogether twenty lay judges participated in the hearings, four of them participating in two hearings and the others in one hearing. In the composition of the court at the time when it gave judgment was one lay judge who had participated in an earlier hearing, whereas the two others participated for the first time.

On 11 March 1997 the District Court convicted the applicant of several cases of aggravated fraud and a number of other offences, and sentenced him to three years’ imprisonment. The prison sentence was ordered to be enforced immediately.  On 20 March 1997 the Court of Appeal ( hovioikeus , hovrätten ) of Helsinki upheld the District Court’s decision about the immediate implementation of the sentence. The applicant appealed to the Court of Appeal against the District Court’s judgment , requesting an oral hearing. The prosecutor and the co-defendants also requested an oral hearing.

On 7 May 1997 the Court of Appeal released the applicant on the ground that there was no reason for immediate implementation of his sentence.

On 6 November 1997 the Court of Appeal rejected the requests for an oral hearing and upheld the District Court’s judgment .

On 2 March 1998 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal but accepted the prosecutor’s request for such leave. In its judgment on 9 November 1999 the court increased the applicant’s sentence by three months.

On 15 March 1999 the applicant made a complaint to the Chancellor of Justice ( oikeuskansleri , justitiekansler ) about the change of the lay judges during the proceedings before the District Court and about the lack of an oral hearing before the Court of Appeal. On 28 February 2000, the Deputy Chancellor of Justice found no need for him take any measures other than to express his criticism to the presiding judge of the District Court concerning the turnover of the lay judges.

On 7 March 2000 the applicant lodged an extraordinary appeal with the Supreme Court. On 26 June 2000 it found no reason to quash the judgments or decisions in question.

B. Relevant domestic law

The relevant domestic law as in force at the relevant time may be summarised as follows:

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegÃ¥ngsbalken ) , as applicable at the material time, did not contain any prohibition against the change of judges.

According to Chapter 23, section 1 (354/1987), the presiding judge of a district court was, during the deliberations, under an obligation to give an account to the lay judges of the issues raised during the hearing as well as of the applicable provisions of law.

Under the District Courts Act ( käräjäoikeuslaki , tingsrättslagen ; 581/1993) which entered into force on 1 December 1993, each lay judge has  an independent vote and the case is decided on in accordance with the opinion of the majority. In case of an equal number of votes, the case shall be decided in favour of the defendant.

According to Chapter 22, section 6 (1064/1991), the hearing of a witness shall be taped. If that is not possible, the testimony shall be entered in detail in the minutes of the court. According to section 9, a taped witness statement shall be reproduced in writing if the court considering the case, or the appellate court, finds it necessary. A copy or a transcript may also be made of the tape, if so requested by a party.

According to Chapter 22, section 10, tapes shall be preserved at least six months from the date of the decision or, in case the decision has been appealed against, from the date of the final decision.

Under the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål ; 82/1995), which entered into force on 1 October 1997, the main rule is that the consideration of a criminal case may no longer be adjourned as the case should be considered without interruptions at the main hearing. According to Chapter 6, section 11 of that Act, the main hearing shall be restarted in case the district court has to take on a new member due to the lack of quorum.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair trial, since a total of 20 lay members participated in the eight hearings before the District Court. These members could not possibly have had enough time to understand the case and to go through the minutes so as to be able to establish their own opinion of the facts.

2. The applicant further complains under Article 6 § 3 (c) that he was not able to defend himself against every charge and that the police officer in charge of the pre-trial investigation participated in the proceedings as an adviser to the prosecutor. The presiding judge also put direct questions to the police officer about the substance of the case, which violated the applicant’s right to a hearing before an impartial tribunal.

3. The applicant finally complains under Article 6 § 1 of the Convention that the Court of Appeal refused to hold an oral hearing and gave no reasons why.

THE LAW

1. The applicant complains, under Article 6 of the Convention, that he did not receive a fair trial, since the lay members of the District Court changed and the judgment was given by lay members who had only three hours to examine the case before rendering the judgment . Article 6 in so far as relevant to this complaint as a whole, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

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;

(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... ”

The Government note that there is no indication in the records that either the applicant or his attorney, who was also present at all of the hearings, reacted to the changes of the lay judges. Thus the applicant arguably approved the changes of the judges. At any rate, with the exception of the first hearing, the presiding judge remained the same throughout the proceedings.

The Government emphasise that the lay judges had the possibility to familiarise themselves with the evidence produced at the earlier hearings. Thus, they had access to the files and tapes of the previous hearings and were able to get a precise picture of the statements of each witness. Furthermore, when deciding on the case, the court had at its disposal the written closing arguments of the parties, in addition to the court records and other written observations, so that all relevant facts were available in the documents during the decision-making. During the deliberations, the presiding judge was under an obligation to give an account to the lay judges of the issues raised during the hearing as well as of the applicable provisions. There is no reason to doubt that this was done also in the present case.

The Government submit that there is no evidence to suggest that the last composition of lay judges failed to examine the case with due care before the decision was taken by the District Court.

The Government further note that in most cases the proceedings are based on extensive written evidence. In the present case the witness statements and pleadings before the court were scrupulously transferred from tapes into the court records. The Government refer to the inadmissibility decision in the case of Karjalainen v. Finland (no. 30519/96, Commission decision of 16 April 1998, unreported) in which a judge who had not personally heard the witnesses decided on the case.

The Government note that the applicant’s case was reviewed both by the Court of Appeal and the Supreme Court. Furthermore, on the applicant’s extraordinary appeal the Supreme Court found on 15 March 1999 that there was no reason to quash the judgments or decisions in question. Finally, the Chancellor of Justice found no need for him to take any measures other than express his criticism to the presiding judge of the District Court regarding the turnover of the lay judges.

The Government finally point out that a strict requirement of immediacy in the proceedings cannot as such be derived from Article 6 § 1 of the Convention. The recent development of the Finnish legislation in this respect only signifies an improvement on the minimum standard provided in the said Article.

The Government conclude that this part of the application is manifestly ill-founded.

The applicant maintains his complaints. He submits that when Finland acceded to the Convention, and lodged a partial reservation to Article 6, no reservation was lodged in respect of the issue now at hand. The fact that district court and criminal trial reforms were subsequently adopted and implemented in Finland should have made the judicial authorities and judges more aware of, and sensitive to, the deficiencies in the applicant’s trial, as the reform had been long in preparation and widely discussed by professionals of the Bar and the bench before and after the Government Bill of 1995 had been submitted. The  Criminal Procedure Act entered into force on 1 October 1997, i.e. almost immediately after the district court judgment . The overall procedure of the courts is all the more surprising, as the Court of Appeal gave its judgment , declining the applicant’s request for an oral hearing, and the Supreme Court refused his request for leave to appeal, after the Criminal Procedure Act had entered into force.

The applicant submits that the changes in the District Court’s composition had a direct effect on the manner in which his case was heard. Even the first hearing was relevant, as the parties then lodged their claims and the applicant his statement of defence. The applicant at no stage approved of judges being changed and called attention to this already during the district court proceedings. The changes not only constituted an objective, material violation of the rules of a fair trial, but also reinforced the applicant’s impression that the court was not impartial and the trial as a whole not fair.

In the absence of evidence presented directly to those responsible for drafting the judgment , mere closing arguments of the parties were of little use in the preparation of and the deliberations leading to the judgment . The trial concerned serious criminal offences, the main charge alone carrying the maximum penalty of four years in prison. The trial material was very extensive and complex, unlike in the Karjalainen case.

The applicant further notes that the appeal proceedings did not provide an effective remedy since no oral hearings were held, nor was the case returned to the lower court. The Chancellor of Justice effectively admonished the presiding judge, emphasising that the proper procedure should have been followed even if the Criminal Procedure Act had not yet entered into force.

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.

2. The applicant further complains, under Article 6 § 3 (c) of the Convention, that he was not able to defend himself against every charge and that the police officer in charge of the pre-trial investigation participated in the proceedings as an adviser to the prosecutor and that he was questioned about the substance of the case.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted. The applicant did not raise these complaints before the domestic courts and has therefore not exhausted the remedies available.

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

3. The applicant complains that the Court of Appeal’s refusal to hold an oral hearing also violated his right under Article 6 § 1 of the Convention.

The Court notes that the reservation made by the Finnish Government in accordance with Article 64 (after the entry into force of Protocol No. 11 on 1 November 1998, Article 57) of the Convention, in respect of the right to a public hearing guaranteed by Article 6 § 1 of the Convention, read at the relevant time as follows:

“For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:

1. proceedings before the Court of Appeal ... in accordance with Chapter 26, Section 7, ... of the Code of Judicial Procedure...”

Having regard to the terms of her then reservation, Finland was under no  Convention obligation to ensure that an oral hearing was held before the Court of Appeal. Consequently, the complaint concerning exclusively the lack of such a hearing at that court level must be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3.

The aforementioned conclusion is without prejudice to the question of whether the court of appeal proceedings thus qualified by Finland’s reservation could remedy any unfairness that might have occurred in the district court proceedings as a result of the change of judges (cf. Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2926, §§ 44-47).

For these reasons, the Court unanimously

Declares admissible, without prejudging its merits, the applicant’s complaint concerning the change of the judges in the proceedings against him ;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President