FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52529/99 by Martti Juhani HYVÖNEN against Finland

The European Court of Human Rights (Fourth Section) , sitting on 30 April 2002 as a Chamber composed of

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

Having regard to the above application lodged on 4 October 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 is a Finnish national , born in 1928 and resident in Turku . He is re presented before the Court by Mr Miikka Hakanen, a lawyer practising in Turku. The respondent Government are represented by its Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

On 16 June 1998 the District Court ( käräjäoikeus , tingsrätten ) of Vantaa convicted the applicant of aggravated concealment of stolen goods and aggravated forgery, sentencing him to one year and six months’ imprisonment. The applicant had denied the charges. In his appeal he maintained his innocence and, in the alternative, requested that his sentence be reduced or suspended. He also proposed to re-examine witness P., who had already been heard in the District Court.

The Court of Appeal ( hovioikeus , hovrätten ) of Helsinki summoned the applicant to attend its oral hearing on 24 May 1999. He failed to do so, allegedly due to his dementia and other age-related illnesses, but was represented by his counsel, who submitted a medical certificate and alluded to the applicant’s dementia. Counsel further stated that the applicant had failed to show up for their joint departure for Helsinki in spite of their prior agreement.

In its decision of the same day the Court of Appeal found that no legally valid excuse had been shown for the applicant’s absence. His appeal was therefore struck out without counsel having been able to plead its merits and without having been able to re-examine witness P. The State was ordered to pay P. an allowance and reimburse her costs for having presented herself at the hearing venue.

On 15 July 1999 the Court of Appeal dismissed the applicant’s request for the proceedings to be re-opened. A fresh medical certificate of 11 June 1999 had not convinced the court that he had had a valid excuse for being absent from its main hearing.

On 28 September 1999 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

B. Relevant domestic law and practice

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) stipulates that a person has a legally valid excuse if, due to illness or an interruption of public traffic, he or she has been prevented from complying with a court’s summons ordering him or her to appear in court in person. If another impediment is pleaded or otherwise comes to the court’s knowledge, it shall determine whether that reason constitutes a legally valid excuse. A party who sends a representative instead of appearing in person – in spite of a court order to that effect and without showing a legally valid excuse – shall be deemed to be absent (chapter 12, sections 28-29, as amended by Act no. 1052/1991).

The court of appeal shall notify the parties of the date, time and place of its main hearing. At the same time they shall be notified of the possible sanction resulting from a failure to appear at the main hearing. An appellant shall be invited to the main hearing on pain of seeing the proceedings discontinued if he or she fails to attend. I f the case has been discontinued due to such absence, even though the appellant had a legally valid excuse which could not be communicated to the court in time, the appellant may seek to have the proceedings re-opened by notifying the court in writing within thirty days of its strike-out order. If the appellant cannot prove that there existed a valid reason for his or her earlier absence the appeal shall not be examined on its merits (chapter 26, sections 17-18, 20 and 22, as amended by Act no. 165/1998).

In a judgment of 28 March 2000 (KKO 2000:44) the Supreme Court upheld a decision by a c ourt of appeal whereby it had discontinued the criminal proceedings in spite of the defendant’s appeal, since he had failed to appear in person at the main hearing, instead being represented by counsel. The Supreme Court held that in refusing to examine the appeal the Court of Appeal had acted in compliance with chapter 12, section 29, and chapter 26, section 20 of the Code of Judicial Procedure.

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention that he was denied a fair hearing in the appeal proceedings. His dementia and other age-related illnesses were not accepted as a legally valid excuse for his failure to attend the Court of Appeal’s hearing. Furthermore, his counsel was prevented from presenting pleadings in the applicant’s absence and from examining witness P.P.

2. The applicant further complains that he was denied the right in Article 2 of Protocol No. 7 to have his conviction reviewed by a higher tribunal.

THE LAW

1. The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention that he was denied a fair hearing as his appeal to the Court of Appeal was struck out after he had failed to show up for its hearing, leaving his counsel unable to plead the case on his behalf or to examine witness P.P.

In so far as relevant to the present case Article 6 § 1 of the Convention reads as follows:

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

The relevant parts of Article 6 § 3 read as follows:

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

(c) to defend himself in person or through legal assistance of his own choosing ...;

(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 Government consider that the practice followed by the Court of Appeal and endorsed by the Supreme Court in its judgment 2000:44 is aimed at improving the right of the accused to obtain a fair trial and should therefore not be regarded as constituting a violation of Article 6 § 3 (c) read in conjunction with Article 6 § 1.

The Government recall that in its Poitrimol v. France judgment (Series A, no. 277-A, § 35) the Court found it to be of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses. The legislature must accordingly be able to discourage unjustified absences. It is true that the Court has also found it to be of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see, for example, the Lala v. the Netherlands judgment , Series A no. 297-A, § 33; the Pelladoah v. the Netherlands judgment , Series A no. 297-A, § 40; and the Van Geyseghem v. Belgium judgment , no. 26103/95, ECHR 1999-I,  § 40).

The Government note counsel’s explanation that he was supposed to travel with the applicant to the court hearing but that the latter had failed to show up. Given the applicant’s bad memory, counsel could have been expected to remind him of the hearing.

Turning to Article 6 § 3 (d) of the Convention, the Government submit that the applicant’s right to examine witnesses was not restricted. P., whom the applicant had wished to examine in the Court of Appeal, had already been heard in the District Court in his and counsel’s presence. Had the applicant appeared in person in the Court of Appeal he would have been able to have P. re-examined.

The applicant maintains his complaint and contends that his absence from the hearing before the Court of Appeal was due to his dementia and bad memory.

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 that he was denied the right in Article 2 of Protocol No. 7 to have his conviction reviewed by a higher tribunal. T he relevant part of this provision reads as follows:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his 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. ”

In the view of the Government the Court of Appeal’s refusal to examine the applicant’s appeal due to his failure to appear in person was not tantamount to depriving him of his right to appeal. His failure to appear, without being able to show a legally valid excuse, was equivalent to a waiver of that right. At any rate, he was able to challenge the Court of Appeal’s decision to discontinue the case and was likewise able to seek leave to appeal to the Supreme Court. In those circumstances the requirements of Article 2 of Protocol No. 7 were met.

The Court considers, in the light of the parties’ submissions, that this complaint also 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 either. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza        Registrar     President