FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29724/96 by O. and P.-O. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 19 October 2000 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 December 1995 and registered on 6 January 1996,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Finnish national s , both born in 1942. They are a married couple living in Naantali , Finland. The first applicant is a Court of Appeal judge and the second applicant is a university teacher. Before the Court they are represented by Mr Matti Wuori , a lawyer practising in Helsinki.

A. Particular circumstances of the case

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

In 1990 criminal proceedings were brought in the District Court ( kihlakunnanoikeus , häradsrätt ) of Piikkiö . The applicants' neighbours (MS, RS and their daughter PS) were charged with defamation, infringement of domestic peace and slander, among other offences. The first applicant was charged with minor theft. There was an order of a joinder of the two cases. On 12 February 1991 MS was found guilty of slander and fines were imposed. He was ordered to pay the second applicant FIM 3,000 in compensation. The other charges were rejected as inadmissible or unfounded.

The applicants appealed to the Court of Appeal ( hovioikeus , hovrätt ) of Turku claiming compensation and requesting their neighbours to be convicted. The judges of the third chamber of the Court of Appeal, which dealt with the case, were K, L and N. As the appeal concerned the evaluation of a particular statement by a witness and this witness's observations of the premises, the Court of Appeal decided to conduct an inspection on the site, i.e. the backyard of the applicants' house. The inspection took place on 27 September 1991 in the presence of judges K, L and N.

On 6 April 1992 the Court of Appeal found the charge against RS to be unfounded rather than inadmissible but otherwise upheld the District Court's judgment.

On 30 September 1992 criminal proceedings were instituted by the public prosecutor in the City Court ( raastuvanoikeus , rådstuvurätt ) of Turku against JE and TS, who had been witnesses in the above-mentioned trial, and against MS, RS and PS. JE and TS were charged with giving false statements as a witness under oath. PS was charged with giving false statements as a witness. MS and RS were charged with inciting the above-mentioned offences. RS was also charged with slander as she was accused of claiming that the applicants had done something which might endanger their good reputation (the actual content of the slander is not mentioned in the file). Each of the applicants claimed FIM 30,000 in compensation for moral damage.

On 11 November 1992 the applicants brought additional private prosecution proceedings against MS, RS and PS, charging PS with attempted fraud and malicious accusation and MS and RS with incitement to those offences. The public prosecutor did not support these charges. There was an order of a joinder of the two cases (with the proceedings instituted on 30 September 1992).

On 5 May 1993 the City Court found RS guilty of slander and rejected the rest of the charges. RS was ordered to pay the applicants FIM 5,000 each in compensation.

The applicants, the public prosecutor and RS appealed to the Court of Appeal of Turku . The appeals were examined by the third chamber of the court which had also conducted the inspection in the previous case in 1991. Judges L and N were still sitting in this chamber. A chamber of the Court of Appeal consists of three judges.

On 2 November 1994 the Court of Appeal acquitted RS and upheld the rest of the City Court's judgment. In its reasoning the Court of Appeal made an explicit reference to its findings based on the inspection conducted during the earlier proceedings.

The applicants were refused leave to appeal by the Supreme Court ( korkein oikeus , högsta domstolen ) on 22 June 1995.

B. Relevant domestic law

According to Chapter 13, Section 1, of the Code of the Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ), as in force at the relevant time, a judge is disqualified when he has acted as a judge in another court in respect of the same case or when he has on a court order earlier decided on a question related to that case.

COMPLAINTS

The applicants complain of a violation of their right to a fair hearing by an independent and impartial tribunal as guaranteed by Article 6 § 1 of the Convention as:

1. the Court of Appeal was composed in practically the same manner when adjudicating the two cases and based its reasoning in the second case on an inference drawn at an inspection conducted in the earlier case by judges L and N, who formed the majority in the second case. The outcome of the later proceedings was dependant on the observations made during the earlier proceedings independently of the arguments submitted by the parties. The findings based on the inspection could not be contested immediately, as they were not expressly referred to at the first instance in the later proceedings. In the later proceedings the Court of Appeal rejected the applicants' appeal with explicit reference to its findings based on the inspection conducted during the earlier proceedings. The applicants claim that, in these circumstances, the Court of Appeal could not be considered independent and impartial in the second proceedings; and

2. the Supreme Court refused to examine the alleged lack of independence and impartiality of the Court of Appeal.

THE LAW

1. The applicants complain that the charges brought in the second set of proceedings were not examined by an independent and impartial tribunal and that the proceedings were unfair, contrary to Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights ..., everyone is entitled to a fair ... hearing ... by              an independent and impartial tribunal ...”

The parties’ observations

a) The Government submit that the application should be rejected as being manifestly ill-founded.

They, firstly, point out that the applicants have not questioned the personal, subjective, impartiality of the judge concerned.

As to objective impartiality, the Government emphasise that the two domestic cases under consideration did not involve the same issue. In the first criminal proceedings MS, RS and PS were charged, inter alia , with defamation and infringement of domestic peace. In the later proceedings persons who had appeared as witnesses in the first proceedings were charged with various offences. In addition, the applicants had presented charges against MS, RS and PS.

None of the charges presented against MS, RS and PS in the later proceedings had been presented nor considered in connection with the earlier proceedings. Thus the case considered in the later proceedings was entirely new.  So was the case brought against the witnesses in the first proceedings.

The fact that the same persons are involved in two different proceedings does not necessarily mean that the issues to be considered are the same or that the judges who have participated in the earlier proceedings would be partial in later proceedings. In the present case the legal questions under consideration in the later proceedings were in all aspects different from those of the earlier proceedings.

The Government observe that it is not unusual in court proceedings that the same person appears before the court in different cases. The fact that a person has earlier appeared before the court as a party or witness does not mean that the judge would be partial if he or she considered charges brought against that person in another case. Each case is considered as a new case, even when the parties have appeared before the judge in question in other cases.

As to the reasoning, the Government note that in the later proceedings the Court of Appeal made in its decision an explicit reference to its findings based on the inspection conducted during the earlier proceedings, as regards two of the ten indictments. These two indictments concerned the charges brought against a witness because of a false statement given under oath and the charges against MS and RS because of incitement to that act.

The Government note that the applicants have complained that the findings based on inspection could not be contested immediately, as they were not expressly referred to at the first instance in the later proceedings. In the light of the documents available, the Government consider the applicants’ allegation incorrect.

The records of City Court of Turku indicate, inter alia , that the counsel of MS had provided the Court with a copy of the minutes of inspection of the Court of Appeal, dated 27 September 1991. The minutes of inspection are a piece of written evidence referred to by the accused MS already in the proceedings at the City Court, in order to deny the charges, and are thus part of the case file in the proceedings. The applicants would have had an opportunity to discuss the issue already in those proceedings and to contest the relevance of the minutes as evidence, if they had wanted to do so. The applicants’ counsel in fact did this, at least when the case was under consideration in the City Court for the first time. The City Court also made a reference to the minutes of inspection in its judgment. Therefore the applicants would have had a possibility to contest the facts entered in the minutes of inspection and their value as evidence even in their appeal to the Court of Appeal.

The case file of the court of first instance was delivered to the Court of Appeal in its entirety and became part of the case file of the proceedings in the Court of Appeal. The Court of Appeal mainly upheld the decision of the City Court, reasoning in the same way as the City Court, including those parts of the decision where the City Court referred to its findings based on the inspection. As regards the third and fourth indictment, the Court of Appeal made an explicit reference to the minutes of inspection in its reasoning. This does not mean, however, that the Court of Appeal brought up such new facts based on the inspection that had not been considered by the City Court. The Court of Appeal merely referred to the minutes of inspection and made an assessment of the relevance of the facts entered therein. The Court of Appeal only took account of such written evidence that had been presented to it in an appropriate manner.

In its assessment of evidence the Court of Appeal was not bound by the decision made in the earlier proceedings, because these had concerned a different case. This was also noted by the applicants’ counsel, according to the records of 30 September 1991 of the City Court of Turku , when he contested the relevance of the minutes of inspection as evidence. The counsel further noted that the inspection had been carried out for the purpose of assessing the charges concerning the violation of domestic peace.

The proceedings subject to complaint in the present case involved false statements given in connection with earlier court proceedings. It would have been unjustified not to take documents related to the earlier proceedings into account in the decision-making, especially when those documents had explicitly been referred to in the later proceedings. According to the Government, the fact that the Court of Appeal assessed the relevance of that evidence in a different way than the applicants does not mean that the applicants’ right to a fair hearing under Article 6 § 1 of the Convention was violated.

The Government, finally, note that at the relevant time the cases were allocated by the registry of the Court of Appeal directly to the referendaries , whose task it was to present them to their chambers. The present cases were presented by different referendaries attached to the same chamber. In principle the cases could have been presented by the same referendary .

The Government recall that a judge for whom grounds of disqualification do not exist cannot refuse to consider a case, even if he or she wants to do so.

b) The applicants contest the Government’s views. They firstly point out that the Section of the Code of Judicial Procedure cited, dating back to 1734 and spelling out specific cases in which a judge should be disqualified and step down, is currently under revision because of its obsolescence and incompatibility with modern legal requirements, including human rights principles and especially Article 6 of the Convention. However, even according to the present law a judge shall be disqualified when she or he acted as a judge in another court in respect of the same case, or when he or she has acted as a judge in another court in respect of the same case, or when she or he has on a court order earlier decided on a question related to that case.

The applicants emphasise that the issue in their case is the reliability of material evidence given by witnesses in oral hearings. Furthermore, the substance of the witnesses’ statements and other evidence in the first case have had direct and crucial bearing on the outcome of the second case. It follows that the reliability of the evidence as presented in the first case has in fact been decisive for the judgement in the second case. The judges in the second case not only had a preconception of the case, but the evidence relied on in the first case in fact had a prejudicial effect on the second one.

The applicants also state that the witnesses called by them were outsiders and hence to be considered as more objective than those of their adversary, consisting of the family members or parties with an interest of their own. The second case was a direct consequence of the first case. As there had been obvious discrepancies in the testimonies, it was of utmost importance for the applicants to be able to contest the reliability of the witnesses’ statements in adversarial hearings. However, the applicants’ requests for oral hearings for the purpose of adversarial contestation were refused by the Court of Appeal. In the second case the Court of Appeal actually did not adjudicate on this issue of essential procedural and material significance at all; nor is there any proper analysis of evidence to be found in the judgment. As two out of three appellate judges in the second case were the same as in the first case, and the court previously had not only rejected the applicants’ request for an adversarial hearing but had taken the highly unusual action of procuring evidence ex officio by way of arranging an on-site inspection, the findings of which they subsequently relied on as evidence even in the later proceedings, it is obvious that there has been breach of the applicants’ rights as appellants and dissatisfied party.

The applicants also state that the rules governing the allocation of appeals within the Court of Appeal have been rigid and blatantly unsatisfactory from a human rights perspective. For the purposes of the present application, it would appear that the Government’s description of the procedure actually followed by as the Court of Appeal amounts to an admission of a court practice falling clearly short of the requirements of fair trial. The practice of allocating a case to a certain referendary or a certain chamber on the basis of prior familiarity with the facts of a new case may be defensible for reasons of expediency but is unacceptable from the point of view of assuring a fair trial under the European human rights system.

The applicants conclude that the procedure, including the denial of adversarial hearings and lack of impartiality of the tribunal, has violated Article 6 § 1 of the Convention.

The Court’s assessment

The parties agree that Article 6 is applicable in the case. The Court sees no reason to come to a different conclusion.

The Court has next examined whether the Court of Appeal of Turku was an independent and impartial tribunal within the meaning of Article 6 §1 of the Convention.

The Court, noting that the case raises questions of impartiality rather than independence proper, recalls that the existence of impartiality for the purposes of Article 6 § 1 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 ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (cf. e.g. 15975/90, Dec. 1.7.1991, D. R. 71, p. 245, and Eur. Court HR, 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 a proof to the contrary. In the present case the Court has not found any substantiated facts which could raise doubts in this respect.

Under the objective test, it must be determined whether there were ascertainable facts which may raise doubts as to the impartiality of the judges in question. In this respect, even appearances may be of a certain importance. According to the established case-law of the Convention organs, the fact that some of the judges have participated in previous proceedings against the applicants does not in itself justify doubts as to their impartiality (cf. e.g. Gillow v. the United Kingdom judgment of 24 November 1986, Series A no.109, § 73, and O.N. v. Bulgaria, 35221/97, Dec. 6.4.2000 (Section), unpublished).

However, the impartiality required by Article 6 § 1 of the Convention may be jeopardised if an individual takes part in several consecutive stages of the same set of proceedings (see Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, § 30).

In the present case, it is true that in the second set of proceedings the relevant Court of Appeal chamber comprised two judges who had earlier taken part in the judgment of the same chamber of 6 April 1992 concerning the charges brought against MS, RS, PS and the first applicant. The second set of proceedings concerned, inter alia , perjury and incitement thereto committed in the course of the first proceedings. The two cases were therefore linked on facts and, also, on reasoning as the findings in the first set of proceedings were used in the reasoning of the second set of proceedings.

Even so, the Court notes that there were two separate sets of proceedings rather than several consecutive stages of the same proceedings. Thus, the judgment of the first proceedings was final at the time when the second proceedings were at the stage of appeal. It was understandable for the Court of Appeal to rely, in the determination of the second set of proceedings, on the final factual findings of the previous set of proceedings. It has not been shown that the applicants were unable to put forward their arguments concerning the relevance of those findings for the second case in the second set of proceedings.

The Court also finds that the legal questions were different in the two proceedings. Thus, the judges who participated in both proceedings, had not considered the same legal issues twice in the same case or decided at the later proceedings any question on which they had already taken stand in connection with the first proceedings.

Therefore, the Court does not find it established that the Court of Appeal would not have complied with its task of reviewing the judgment of the lower court in an objective manner or that it would have lacked impartiality.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.

2. As regards the Supreme Court’s refusal to examine the alleged lack of independence and impartiality of the Court of Appeal, the Court recalls (cf. e.g. Kaunisto v. Finland, 17925/91, Dec. 8.10.1991) that when deciding on a requested leave to appeal, the Finnish Supreme Court does not determine a criminal charge. Therefore, Article 6 § 1 of the Convention does not apply.

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 be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)