FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (Fourth Section) , sitting on 11 December 2001 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 application introduced 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 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.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and derived from the documents submitted , 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 FIM 30,000 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. It was disputed whether 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, who did not support the applicant’s claims, was crucial 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.

The applicant was initially assisted by an interpreter whose native language is Finnish and who interpreted between Finnish and English. This interpreter was invited originally to the pre-trial investigation at the request of the police and she also attended the first hearing of the District Court. The interpreter was, however, replaced in the second District Court hearing with an interpreter of the applicant’s own choosing who, with the District Court’s approval, interpreted the proceedings into the applicant’s native language, Mandinka .

The applicant appealed to the Court of Appeal ( hovioikeus , hovrätt ) against the District Court’s judgment , annexing his then ex-wife’s statement in which she changed her position so as to support the applicant. An oral hearing was also requested. The quality of interpretation was not taken up in the applicant’s submissions to the Court of Appeal.

On 26 November 1996 the applicant’s ex-wife submitted a letter to the Court of Appeal, retracting her previous submission.

It 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 submissions 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.”

According to the applicant, it became apparent only after the Court of Appeal proceedings that the applicant was unable to communicate clearly in English and that he had, thus, been unduly handicapped in the proceedings before the District Court. At that stage the District Court had already destroyed its tape recordings of the oral hearings in question.

The applicant applied to the Supreme Court ( korkein oikeus , högsta domstolen ) for leave to appeal, raising the issue of effective interpretation together with 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 the above-mentioned offence, the Directorate of Immigration ( ulkomaalaisvirasto , utlänningsverket ) ordered on 3 February 1998 that the applicant be expelled from Finland to Gambia. The applicant was also forbidden by the Directorate’s decision to enter Finland, Sweden, Norway, Iceland or Denmark for five years.

The applicant’s appeal was rejected by the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) on 22 September 1998. It was found that the applicant’s expulsion was necessary under the circumstances, regardless of his family ties in Finland, for the prevention of disorder or crime. The expulsion was enforced in the autumn of 1998.

The applicant has a son, who was born in 10 May 1994, with his above-mentioned ex-wife. The son lives in Finland with his mother.

COMPLAINTS

1. 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

a) 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,

b) the District Court was partial in assessing the evidence submitted by the Prosecutor, and

c) there was no oral hearing before the appeal instances even though he had requested one for the purpose of examining witness evidence.

2. The applicant complains, under Article 6 § 2 of the Convention, that he was not presumed innocent as the standard of proof considered adequate to establish his guilt in this matter fell short of the standard which is necessary to overcome the presumption of innocence.

3. The applicant also complains, under Article 6 § 3(e) that he was denied a right to have free assistance of a competent interpreter as the District Court did not take any active steps of its own to ensure that the interpretation was adequate.

4. The applicant complains, finally, under Article 8 of the Convention that his expulsion to Gambia violates his right to respect for his family life as he has a son in Finland whom he has not seen since he was expelled.

THE LAW

1. The applicant complains that he did not have a fair trial in criminal proceedings against him. He invokes Article 6 § 1 of the Convention which reads, insofar 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...”

a) The applicant complains that his ex-wife’s submission of 26 November 1996 to the Court of Appeal was not communicated to him and that he was not given an opportunity to comment on it. This statement consisted of a retraction of a statement dated 15 October 1996 which she had submitted to the Court of Appeal in support of the applicant.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of this complaint to the respondent Contracting Party and invite that Party to submit written observations on it.

b) The applicant complains that the District Court was partial in assessing the evidence submitted by the Prosecutor and, in particular, when assessing the content of the medical certificate submitted on the complainant’s health. He argues that the District Court ignored the point that the applicant was not in Finland in November 1994 although the physician refers to a worsening in the condition of the complainant in the second half of autumn 1994, specifying November 1994 in particular as a time when the complainant’s health deteriorated. In the applicant’s view the District Court falsely accepted that certain bouts of illness and the general worsening of the complainant’s condition were an indication that the offence had occurred. The applicant argues that the District Court was persuaded of the credibility of the complainant principally because she was felt to have told her story consistently on various occasions and because there seemed to be no reason why she would not be truthful.

The Court first recalls that its task is not to examine whether or not the applicant was guilty or innocent of the offence of which he was convicted. The taking of evidence is governed primarily by the rules of domestic law and it is in principle for the national courts to assess the evidence before them, in particular since they have the benefit of hearing witnesses and assessing their credibility. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair.

The Court considers that the fact that the District Court decided against the applicant and found the complainant’s statement more credible than that of the applicant’s does not mean that they were biased. The way in which the court assessed the medical certificate referred to above or other evidence discloses no appearance of a lack of impartiality of the aforesaid tribunal. The Court also notes that the applicant’s case was subsequently examined by the Court of Appeal and the applicant does not allege that it lacked impartiality.

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

c) The applicant further complains under Article 6 § 1 about the lack of an oral hearing before the Court of Appeal and the Supreme Court. He notes that he requested an oral hearing for the purpose of examining his ex-wife and other witnesses. He argues that these requests should have been granted in view of the fact that his ex-wife had twice changed her statement in the matter. In connection with the applicant’s leave to appeal request to the Supreme Court, his ex-wife reversed the thrust of her statement a third time. Therefore, the applicant is of the opinion that the Supreme Court should have provided a re-evaluation of the evidence in the matter explaining its decision to uphold the judgment of the lower instances despite the obvious fact that the applicant’s  ex-wife had proved to be an unreliable witness.

In this respect the Court notes that the absence of a hearing on appeal was covered by Finland’s reservation to the Convention, deposited on 10 May 1990, as in force at the relevant time. Insofar as relevant, the reservation reads as follows:

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

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

As regards the applicant’s reference to the fact that no reasons were given by the Supreme Court for its refusal to grant leave to appeal, the Court recalls, in accordance with its established case-law, that Article 6 does not apply to leave to appeal proceedings as a refusal of leave to appeal does not constitute a determination of civil rights and obligations nor of any criminal charge against the applicant.

It follows that this part of the application is incompatible 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 § 3 of the Convention.

2. The applicant complains that he was not presumed innocent by the District Court as the standard of proof considered adequate to establish his guilt in this matter fell short of the standard which is necessary to overcome the presumption of innocence. He invokes Article 6 § 2 which reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant notes that there was no physical evidence that the alleged offence occurred and no witnesses to it other than the complainant. The prosecution’s case was based on the statement made by the complainant some eighteen months after the time of the alleged offence, on reports of statements made by the complainant to third parties as well some eighteen months after the time of the alleged offence, and on speculation about the causes of a deterioration in the applicant’s health at the time of the alleged offence. The applicant claims that the complainant was unable to provide any details of which she could have become aware during the course of the alleged offence. In the present case it was the complainant, not the applicant, who was given the benefit of the doubt which this inability created.

In respect of the taking of evidence the Court recalls what was said above (see point 1(b) above) about the national courts’ task to assess the evidence before them.

The presumption of innocence guaranteed by Article 6 § 2 of the Convention requires, inter alia , that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused (see, inter alia , the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, § 77).

The Court notes that the applicant was assisted by counsel throughout the proceedings. It has not been alleged that the counsel was in any way prevented from adducing evidence in support of the defence. In the circumstances of the case and assessing the proceedings as a whole, the Court finds no indication that the trial court, contrary to Article 6 § 2 of the Convention, started from the presumption that the applicant had committed the offence with which he had been charged.

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

3. The applicant then complains, under Article 6 § 3(e) that he was denied a right to have the free assistance of a competent interpreter as the District Court did not take any active steps of its own to ensure that the interpretation was adequate. The relevant paragraph reads as follows:

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

...

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The applicant’s native language is Mandinka and the criminal proceedings against him were conducted in Finnish. The applicant was originally assisted by an English speaking interpreter during the pre-trial investigation and the first court hearing. That interpreter had been requested and appointed by the police. Having found the interpretation inadequate, the applicant came to the second District Court hearing with a non-professional interpreter of his own choosing who could interpret between Finnish and Mandinka .

According to the applicant, he was first required to use a language of which his command is very limited, i.e. English. He argues that the ease with which the original, formally qualified interpreter was replaced by an unqualified interpreter in a matter heard in camera suggests that the District Court was aware of the interpretation problems. The District Court did not, however, take any active steps of its own to ensure that the interpretation was adequate, nor to correct any errors which might have already occurred. In particular, at no stage was the applicant even asked whether he could communicate properly with the interpreter.

The Court notes, however, that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 § 3(e) as, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

In the present case the applicant failed to raise this complaint in his appeal to the Court of Appeal and has, therefore, not exhausted the remedies available to him under Finnish law. Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant from exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of his application must be rejected under Article 35 § 4 of the Convention.

4. The applicant, finally, complains under Article 8 of the Convention about a violation of his right to respect for his family life as he was expelled to Gambia and is subject to a five-year ban on re-entry to the Nordic countries even though he has a son in Finland. Article 8 reads as follows:

“1. Everyone has the right to respect for his ... family life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

The applicant claims that his right to family life and, in particular, his right to maintain contact with his son have been subjected to an interference by public authorities in Finland contrary to Article 8 of the Convention. His appeal against expulsion rested, inter alia , on his family ties to Finland. This appeal was rejected by the Supreme Administrative Court, which upheld the expulsion decision considering that the offence for which the applicant had been convicted outweighed his family ties. This means that the court acknowledged the interference with his family life but considered this to be necessary under the circumstances. The applicant points out that if his conviction for aggravated sexual assault of a minor was unsafe, then his subsequent expulsion based on the said conviction must also be unsafe.

The Court agrees that the expulsion may interfere with the applicant’s right to respect for his family life. It finds however, in agreement with the Finnish Supreme Administrative Court’s decision, that it can under the circumstances of the present case be regarded as justified for the prevention of disorder or crime or for the protection of the rights and freedoms of others within the meaning of Article 8 § 2 of the Convention.

It follows that this part of the application 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

Decides to adjourn the examination of the applicant’s complaint concerning [Note1] non-communication of the applicant’s ex-wife’s submissions to the Court of Appeal on 26 November 1996;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.