FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42114/98 by Jari TANNER and Application no. 42185/98 by Jukka MALMINEN against Finland

The European Court of Human Rights (Fourth Section) , sitting on 26 February 2002 as a Chamber composed of

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

Having regard to the above applications lodged with the European Commission of Human Rights on 8 and 2 June 1998 and registered on 8 and 15 July 1998, respectively,

Having deliberated, decides as follows:

THE FACTS

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

The applicants Mr Jukka Malminen and Mr Jari Tanner are Finnish nationals. Mr Malminen was born in 1956 and lives in Raisio . Before the Court he is represented by Mr Heikki Salo , a lawyer practising in Helsinki. Mr Tanner was born in 1957 and lives in Tampere . Before the Court he is represented by Ms Tiina Nystèn , a lawyer practising in Helsinki.

On 27 January 1994 the public prosecutor instituted criminal proceedings against the applicants, charging them with, inter alia , incitement to aggravated embezzlement before the District Court ( käräjäoikeus , tingsrätten ) of Helsinki.

At the second hearing of the case, the presiding District Court judge stated that “one can see what is the issue in this case”. According to the applicants, the judge already showed his partiality and negative attitude against the applicants at that time. At a later hearing, in which Mr Malminen stated that he would prove his innocence, the judge expressed his doubts by noting that “it would be a difficult task”. Also when one of the applicants’ co-accused hid his face from photographers, the judge stated that “it has never been necessary for honest men to hide themselves in this courtroom”. According to the applicants, the presiding judge was indifferent, chatting to other judges when the applicants’ witnesses were heard and once even cut his nails at that time.

At the 18 th hearing, on 26 January 1995, the prosecutor brought a further alternative charge of aggravated fraud against the applicants. They requested the court to dismiss the alternative charge without considering the merits, alleging that denying the primary charge would automatically mean admitting the alternative one. Thus the way in which the charges were framed destroyed their defence. On 17 March 1995 the District Court dismissed the request, recalling that alternative charges were not forbidden by law and finding that they did not prevent the applicants’ effective defence.

On 18 January 1996, at the 35 th hearing of the case in which the parties presented their final pleadings, Mr Malminen announced that he had the same day instituted private prosecution proceedings against the presiding District Court judge for an alleged offence while in office as he had dismissed the objection to the alternative charge presented earlier: it was claimed that, therefore, the judge was biased and should step down from the bench. On 29 February 1996 the District Court dismissed the claim concerning disqualification of the judge, finding that the charges brought by the applicant did not as such constitute grounds for such disqualification. Furthermore the decision to reject the claim concerning the alternative charges did not indicate the judge’s preconceived attitude to the case as alleged by Mr Malminen . The District Court further found that the allegations concerning the judge’s behaviour during the hearings were unsubstantiated.

In the main proceedings the District Court convicted Mr Malminen of, inter alia , twelve counts of aggravated fraud and five counts of incitements to aggravated embezzlement. He was sentenced to seven years’ imprisonment and ordered to pay FIM 18,000,000 (approximately 3,000,000 Euros ) in compensation. Mr Tanner was convicted of, inter alia , ten aggravated frauds and five incitements to aggravated embezzlement. He was sentenced also to seven years’ imprisonment and ordered to pay FIM 8,000,000 (approximately 1,300,000 Euros ) in compensation. According to the applicants, the sentences imposed were maximum penalties for the offences in question. Mr Tanner was also taken into custody immediately after the hearing even though he had not been in detention during the trial.

The applicants both appealed to the Helsinki Court of Appeal ( hovioikeus , hovrätt ) which, on 6 March 1997, upheld the District Court’s decision, finding that the alternative charges did not prevent the applicants’ defence or otherwise violate their right to a fair trial. Concerning the disqualification of the judge the Court of Appeal found that the decision to dismiss the applicants’ plea concerning the prosecutor’s alternative charges was given at the 18 th hearing and Mr Malminen made his allegations more than ten months later at the 35 th and last hearing. Mr Malminen , further, submitted his allegations concerning the judge’s behaviour at the last hearing even though he claimed that the judge’s impartiality had been obvious during the whole proceedings. The Court of Appeal concluded that Mr Malminen’s purpose by bringing the charge against the judge was to make the judge his adversary and to prevent the court from giving its decision. Having examined the main issue the Court of Appeal rejected some charges and reduced Mr Malminen’s sentence to six years’ imprisonment and Mr Tanner’s sentence to five years six months’ imprisonment. On 8 December 1997 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicants leave to appeal.

On 26 August 1998 the Court of Appeal dismissed, without having a hearing, the charge brought by Mr Malminen against the District Court judge, finding no evidence of the alleged offence. On 18 May 1999 the Supreme Court upheld the Court of Appeal’s decision.

COMPLAINTS

1. The applicants complain, under Article 6 of the Convention, that they did not receive a fair trial in the District Court as the presiding District Court judge was clearly biased after Mr Malminen had instituted private prosecution proceedings against him. The applicants claim that the judge should have been disqualified. Furthermore it was obvious that the judge had a negative attitude towards the applicants during the proceedings. This partiality was shown by his behaviour, his decision concerning the alternative charges, the maximum penalty imposed on the applicants and the fact that he ordered Mr Tanner to be taken into custody immediately after his conviction.

2. The applicants further complain, under Article 6 of the Convention, that the proceedings in the Court of Appeal violated their right to a fair trial since the charge against the judge should have been tried first before the Court of Appeal gave its decision in the criminal case against the applicants.

3. Mr Malminen complains, under Article 6 of the Convention, that he did not have a fair trial in the Court of Appeal and the Supreme Court in the proceedings against the judge as no oral hearing was held and no witnesses were heard.

4. Mr Tanner also complains, under Article 6 of the Convention, that the alternative charges violated his right to a fair trial since the construction of the charges destroyed his defence.

THE LAW

1. The applicants complain, under Article 6 § 1 of the Convention, that they did not have a fair trial before an impartial tribunal as the presiding District Court judge was partial, having behaved in a biased manner during the proceedings and being Mr Malminen’s opposite party to other proceedings. Article 6 § 1 reads, in so far as relevant, as follows:

“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.”

The Court recalls first that the existence of impartiality for the purposes of Article 6 § 1 of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is by ascertaining whether the judge offered guarantees sufficent to exclude any legitimate doubt as to the impartiality in this respect (cf. e.g. G. v. Austria, application no. 15975/90, Commission decision of 1 July 1991, Decisions and Reports 71, p. 245, and the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, § 46).

As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary. Under the objective test, it must be determined whether there were ascertainable facts which may raise doubts as to the impartiality of the judge in question. In the present case the applicants’ main argument is that the judge was biased since he was Mr Malminen’s adversary after he had commenced the private prosecution proceedings against the judge, alleging that the judge had committed an offence while in office by rejecting groundlessly Mr Malminen’s claim concerning the alternative charges and by making defamatory comments concerning the accused during the proceedings.

The Court notes that both the District Court and the Court of Appeal found the bringing of alternative charges to be reasonable and such that they did not prevent the applicant’s defence as alleged. The Court finds no indication that the judge, by admitting the alternative charges, showed a preconceived opinion or bias against the accused.

In so far as the applicants allege that the judge’s comments and the penalties imposed suggested his partiality and that he had formed an opinion as to the guilt of the accused, the Court notes that the District Court proceedings had started already in 1994 and that the applicants waited until the last hearing in the case two years later before making their allegations. The Court has no reason to question the conclusion of the Court of Appeal according to which the allegations of partiality were made in order to prevent the District Court from giving its decision. The applicants ought to have objected in a timely manner. In these circumstances there is no appearance of a violation of Article 6.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must therefore be rejected in accordance with Article 35 § 4 of the Convention.

2. The applicants also complain, under Article 6 § 1 of the Convention, that they did not have a fair trial before the Court of Appeal as the Court of Appeal should have tried the charges brought by Mr Malminen before it gave its decision in the case against the applicants.

The Court notes that the Court of Appeal was informed of the charges brought by Mr Malminen against the District Court judge and that the material concerning this case was submitted to it. The order in which different cases are examined by an appellate court cannot, however, be considered to jeopardise the court’s impartiality as it merely concerns the proper administration of justice. In any event, had the outcome of the second proceedings been different, the applicants could have requested the first proceedings to be re-opened.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must therefore be rejected in accordance with Article 35 § 4 of the Convention.

3. Mr Malminen complains, under Article 6 § 1 of the Convention, that he did not have a fair trial in the proceedings he brought against the District Court judge before the Court of Appeal and the Supreme Court as no oral hearing was held and no witnesses were heard before any of the domestic court instances.

The Court recalls that these proceedings did not involve the determination of a criminal charge against Mr Malminen or any of his civil rights within the meaning of Article 6. Accordingly, Article 6 is not applicable.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention, and must therefore be rejected in accordance with Article 35 § 4 of the Convention.

4. Mr Tanner also complains, under Article 6 § 1, that his right to a fair trial was violated as the Prosecutor was allowed to present alternative charges, jeopardising his effective defence. He argues that denying one charge would automatically mean admitting another one or, at least, cause great difficulties for the defence.

The Court notes that the Convention does not prevent the Prosecutor from presenting alternative charges, provided the accused is given an opportunity to defend himself against those charges as required by Article 6. In the present case there is no indication that the alternative charges or the procedure concerning them rendered the trial unfair.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications; and

Declares the applications inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President