FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37442/97 by P.K. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 9 July 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 11 August 1997,

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 is a Finnish national, who was born in 1942 and lives in Imatra. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government were represented by Mr Holger Rotkirch, Agent, and Mr Arto Kosonen, Co-Agent, both from 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 was charged before the Imatra District Court ( käräjäoikeus , tingsrätt ) with three counts of aggravated fraud and debtor’s dishonesty. In the same case six other defendants were charged with various types of economic offences.

On 11 August 1994 the court proceedings in the District Court of Imatra commenced. The court was composed of one professional presiding judge and three lay members. The court heard the defendants and four witnesses. The case was adjourned until 23 September 1994.

On 23 September 1994 five witnesses gave evidence and the defendants were again heard. The case was adjourned until 9 November 1994.

On 9 November 1994 two witnesses gave evidence and the defendants were again heard. The case was adjourned until 18 January 1995.

Meanwhile, the presiding judge was changed and a new judge presided over the hearing on 18 January 1995. One witness gave evidence. The case was adjourned until 13 March 1995, when one witness gave evidence and the final statements were presented.

On 29 May 1995, the District Court found the applicant guilty on one count of aggravated fraud and debtor’s dishonesty. He was sentenced to a suspended term of imprisonment of one year and six months and ordered to pay FIM 3,686,000 in damages jointly and severally with three other defendants. The applicant was acquitted in respect of two charges. In so far as the judgment concerned his conviction for debtor’s dishonesty, the court based itself on documentary evidence and the testimony of one of the witnesses heard before the presiding judge was changed. That witness’s testimony concerned certain banking transactions with which the witness had been charged in her capacity as bank employee.

The applicant appealed to the Kouvola Court of Appeal ( hovioikeus , hovrätt ), requesting an oral hearing. On 20 June 1996 the Court of Appeal rejected the request for an oral hearing and upheld the conviction in respect of debtor’s dishonesty, but acquitted the applicant of the aggravated fraud. The Court of Appeal ordered that one of the defendants should not have to pay damages. It upheld the District Court’s decision in respect of the applicant and two other defendants, but limited the damages to be paid by those two to FIM 500,000 each. In addition, the Court of Appeal convicted the applicant and another defendant to pay, with joint liability, FIM 304,200 based on the claim of the bankruptcy estate, which claim the District Court had dismissed.

The applicant sought leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen ) which, on 12 February 1997, granted such leave concerning the Court of Appeal’s order for damages to be paid by the two co-defendants.

On 19 June 1997 the Supreme Court gave its judgment and lifted the Court of Appeal’s order in so far as it concerned the limitation of the damages to be paid by the co-defendants to the bankruptcy estate. The Supreme Court found that this issue had not been addressed before the Court of Appeal and therefore the Court of Appeal should not have decided it. The District Court’s order concerning damages was thus upheld.

B. Relevant domestic law

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

According to Chapter 26, section 7, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ), the Court of Appeal could, when necessary, hold an oral hearing where parties, witnesses and experts could be heard, and other evidence could be taken. The oral hearing could be restricted to a certain issue.

According to the domestic legislation in force at the relevant time  there was no prohibition against changing the presiding judge during the proceedings. The new Criminal Procedure Act ( laki oikeudenkäynnista rikosasoissa , lag om rättegång i bråttmål ) came into force on 1 October 1997. 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.

According to the Code of Judicial Procedure the chairman and three lay judges constitute the quorum in a district court. The lay judges have a personal vote. The presiding judge shall explain to the lay judges the issues that have arisen in the case and the provisions applicable to the issues. In case of a vote, the opinion of the majority is to prevail. In the event of a tie, the opinion more lenient to the defendant is to prevail.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that he did not receive a fair trial, since the presiding judge was changed during the District Court’s proceedings. The first judge had heard most of the witnesses. After the change of the judge the witnesses heard before were not heard again. The judgment in the case was, thus, written by the judge who had not heard certain witnesses, in particular one witness on whose testimony the court based its judgment . There was thus a lack of “immediacy” in the proceedings. The applicant also maintains that, in these circumstances and in spite of Finland’s reservation to Article 6, the Court of Appeal should have held an oral hearing. The applicant further complains that the reasoning of the District Court was not adequate. The shortness of the reasoning made it difficult to appeal, since the court did not demonstrate that it had considered all the aspects relied on by the defence.

2. The applicant also invokes Article 2 of Protocol No. 7 to the Convention in respect of the allegedly inadequate reasoning given by the District Court.

THE LAW

1. The applicant complains, under Article 6 of the Convention, that he did not receive a fair trial, since the presiding judge of the District Court was changed after three hearings and the new judge, who was responsible for the judgment , had not heard himself the witness on whose testimony the judgment was based. Article 6, insofar as relevant, reads as follows:

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

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.”

a. The change of the presiding judge

The Government note that, at the material time, it was possible to adjourn the criminal proceedings several times, and that there were no provisions of law requiring that the presiding judge or the lay members should remain the same in all the court hearings. In the present case the witness statements were taped and entered into the court’s minutes word by word.  The written statement of witness H. was 27 pages long and it was only one piece of evidence relied on by the District Court. The minutes of the District Court consisted of a total of 303 pages. Thus, the presiding judge in the last four hearings had access to the files and tapes of the previous hearings and was able to get precise knowledge of the statements of each witness.

The Government further recall that the applicant and his attorney were present at the fourth hearing on 18 January 1995 when the new judge presided for the first time and they did not react to or comment on the change of the presiding judge.

Furthermore, the Government consider that at no stage of the proceedings of the District Court did the applicant request the court to call a particular witness to be heard again. The applicant did not present any allegations before the District Court or the Court of Appeal as to the inadequacy or incorrectness of the District Court’s minutes, including the witness statements.

The Government conclude that this complaint is manifestly ill-founded.

The applicant maintains his complaints. The District Court’s record was very long and as a result, the judge who decided the case after acquainting himself only with the written record was not able to discern what was essential in the case, nor was he in a position to ascertain whether the record corresponded to his own observations in the courtroom. The judge did not have an opportunity to pose additional questions in the event that he did not understand what the witness or a party had said or meant. He was not in a position to notice possible mistakes in the record either. Paper records do not clarify whether a witness is lying or not, and listening to a tape does not improve the situation. Unreliability on the part of a person testifying in court becomes evident only in a comprehensive context in which sensory observations are made and clarifying questions are posed.

As to the Government’s submission that the applicant or his attorney did not react to the change of the presiding judge, the applicant notes that he  became a victim of a violation of Article 6 only when his sentence became final at the Supreme Court. Only when that decision was given was it possible to see where the replacement of the judge had led. In his appeal to the Court of Appeal he did, however, demand an oral hearing, since, in the District Court, the judge had been replaced after the crucial witness had been heard.

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and national courts. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair.

All evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness  against him, either when he was making his statement or at a later stage of the proceedings (see e.g. Isgro v. Italy judgment 19 February 1991, Series A no 194, p. 12, § 34; Van Mechelen and others v. the Netherlands judgment of 23 April 1997, 1997-III, p. 711 § 51).

The Court considers that an important element of fair criminal proceedings is also the possibility of the accused to be confronted with the witness in the presence of the judge who ultimately decides the case. Such a principle of  immediacy is an important guarantee in criminal proceedings in which the observations made by the court about the demeanour and credibility of a witness may have important consequences for the accused. Therefore, normally a change in the composition of the trial court after the hearing of an important witness should lead to the rehearing of that witness.

In the present case the change of the presiding judge of the District Court did not deprive the applicant of his right to challenge or question any of the witnesses heard by the court, including witness H., who was heard by the original composition of the District Court on 23 September 1994. The other requirement mentioned above, namely the principle that a change of a judge should lead to the rehearing of an important witness was, however, not complied with in this case.

Even so, the Court considers that in the specific circumstances of the present case this defect does not alone constitute a violation of Article 6. First, while the presiding judge was changed the three lay judges remained the same throughout the proceedings. Secondly, the credibility of the witness in question has at no stage been challenged, nor is there any indication in the file justifying doubts about her credibility. In these circumstances the fact that the new presiding judge had at his disposal the minutes of the session at which the witness had been heard (cf. Karjalainen v. Finland, application no. 30519/96, Commission decision of 16 April 1998, unreported) to a large extent compensates for the lack of the immediacy of the proceedings. Thirdly, the applicant’s conviction was not based only on the evidence of witness H. Finally, there is nothing suggesting that the presiding judge was changed in order to affect the outcome of the case or for any other improper motives.

In so far as the applicant criticises the conclusions drawn by the new presiding judge and the other members of the court on the basis of the evidence of witness H., rather than expresses doubts about her credibility, the Court recalls the primary role of domestic courts in the assessment of evidence. The conclusions drawn by the domestic court in the present case do not appear arbitrary so as to raise an issue under Article 6 (see also (b) below). The Court further notes that the applicant could challenge those conclusions before two further court instances.

b. The allegedly inadequate reasoning of the District Court

The applicant also complains that the reasoning of the District Court’s judgment was so defective as to deprive him of an effective use of the right of appeal.

The applicant maintains that in the case of debtor’s crimes the insolvency of the debtor represents an especially important question. The District Court provided no explanation  whatsoever of its view that the company had become insolvent.

The Government submit that the District Court’s decision explained the legal provisions applied and the sanctions imposed. The judgment contains eleven pages of reasons, indicating to a sufficient detail why and on what grounds the District Court reached  its conclusions.

The Government conclude that this part of the application should also be declared inadmissible as being manifestly ill-founded.

The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments , but cannot be understood as requiring a detailed answer to every argument. In the present case the court in its reasoning addressed each count of indictment explaining the conclusions it had drawn. The Court finds no indication that the way in which the court reasoned its judgment prevented the applicant from appealing to a higher court or otherwise constituted a violation of Article 6 of the Convention.

In conclusion, none of the above alleged shortcomings considered on their own justify the finding that the applicant did not receive a fair trial. Moreover, even if the alleged shortcomings are considered together, the Court cannot find that the proceedings as a whole were unfair.

It follows that this complaint and the one examined in (a) above must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

c. Absence of oral hearing on appeal

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

The Government note that when Finland ratified the Convention, a reservation was made to Article 6. Due to the amendments made to the Code of Judicial Procedure and due to the new Criminal Proceedings Act, the said reservation was partially withdrawn on 30 April 1998. According to Chapter 26, section 7 of the Code of Judicial Procedure which was in force at the relevant time, a court of appeal could, if it considered it necessary, hold an oral hearing in a case in which an appeal against the judgment of the court of the first instance had been lodged. According to section 8 and as regards the charges brought against an accused, the judgment of the court of first instance could not be amended by a court of appeal following a re-evaluation of evidence without a re-hearing having been held, unless the sentence imposed by the court of appeal only amounted to fines, or unless a re-hearing was clearly unnecessary. The applicant’s conviction was not  amended on appeal. In fact his sentence was reduced by two months as the Court of Appeal acquitted the applicant of the charge of aggravated fraud. The applicant was thus not at the relevant time entitled to an oral hearing before the Court of Appeal.

The Government conclude that the application in this respect should be declared inadmissible as being incompatible ratione materiae with the Convention or at any rate as being manifestly ill-founded.

The applicant submits that according to the Supreme Court’s practice he had a right to an oral hearing in the Court of Appeal. The interpretation of Chapter 26, section 7 of the Code of Judicial Procedure is a matter of judicial discretion and not a question of whether it was appropriate to hold an oral hearing on appeal. Even before Finland rescinded its reservation, an oral hearing had to be held if it was needed, as in the present case, in which the Court of Appeal’s evaluation of the evidence presented in support of the damage claim differed from the District Court’s assessment. Finland’s reservation to Article 6 of the Convention does not  therefore apply to this case. With respect to the substance of Finland’s reservation, it should be noted that the reservation applies only to oral hearings, not to the fairness of proceedings. The reservation must be interpreted as meaning that the judicial system is not bound to the use oral appeal procedures as a means of ensuring fair court proceedings; when there is no oral hearing, it is supplanted by other means. In this instance no attempt was made to compensate for the gap created when an oral hearing was denied.

As regards the applicant’s complaint that no oral hearing was held in the Court of Appeal, 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 Courts of Appeal ... in accordance with Chapter 26, Section 7, ... of the Code of Judicial Procedure...”

The Court first recalls that when a right to appeal exists under domestic law, Article 6 § 1 applies also to proceedings on appeal (see e.g. Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 13-15, §§ 25 ‑ 26).

It is true that there was no hearing before the Court of Appeal in the applicant’s case. The Court notes the applicant’s argument that since the right to an oral hearing before the  Court of Appeal was provided by Chapter 26, section 7, of the Code of the Judicial Procedure, the reservation was inapplicable.

The Court recalls that when the Convention refers back to domestic law, compliance with such law is an integral part of the obligations of the Contracting States and the Court is accordingly competent to satisfy itself of such compliance where relevant. The scope of its task in this connection, however is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the  courts, to interpret and apply domestic law (see Lukanov v. Bulgaria judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, p. 543, § 41). Similar considerations apply mutatis mutandis to the interpretation of the Finnish reservation, the scope of which is defined in part by a reference to domestic law (e.g. no. 35879/97, Dec. 28.9.1999).

In the present case the Court of Appeal rejected the applicant’s request to hold an oral hearing. This must be taken to mean that in the Court of Appeal’s opinion, Chapter 26, section 7, of the Code of Judicial Procedure did not guarantee a right to an oral hearing in the circumstances of the applicant’s case. Having regard to the terms of section 7, the Court cannot find that this interpretation of domestic law was arbitrary. The Court therefore accepts that the rejection of the oral hearing in the Court of Appeal was in conformity with domestic law.

In view of the above and having regard to the terms of Finland’s reservation, Finland was under no Convention obligation to ensure in respect of the Court of Appeal that an oral hearing was held. While it is true that the effect of the reservation was to deny the applicant a right to an oral hearing before the Court of Appeal, this result must be considered compatible with the Convention as a consequence of the operation of a valid reservation (see Helle v. Finland judgment of 19 December 1996, Reports 1997-VIII, pp. 2925-2926, §§ 44 and 47).

It follows that the complaint concerning the lack of an oral hearing before the Court of Appeal is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3.

2. The applicant has also complained that the inadequate reasoning of the District Court deprived him of his right to appeal against the judgment . He invokes Article 2 of Protocol No 7 of the Convention, which in its relevant part reads as follows:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have this conviction or sentence reviewed by a higher tribunal. The exercise of this right, including  the grounds on which it may be exercised, shall be governed by law.”

The Government note that the Court of Appeal and the Supreme Court did consider the applicant’s views on the reasoning of the District Court. The Court of Appeal accepted the District Court’s reasoning in respect of the offence of debtor’s dishonesty with some additions, and the Supreme Court did not grant leave to appeal in this respect.

The Government conclude that this complaint is also manifestly ill-founded.

The Court recalls its above finding that the reasoning of the District Court judgment was compatible with Article 6. It further notes that the applicant could appeal to the Court of Appeal and seek leave to appeal to the Supreme Court. Thus the applicant clearly had right to have his conviction and sentence reviewed by a higher tribunal in conformity with Article 2 of Protocol No. 7.

It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President