FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30509/96 by Keijo VILHUNEN against Finland

The European Court of Human Rights ( Fourth Section ) sitting on 25 November 1999 as a Chamber composed of

Mr G. Ress, President , Mr M. Pellonpää,

Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 February 1996 by Keijo Vilhunen against Finland and registered on 19 March 1996 under file no. 30509/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1960 and resident in Espoo . He is represented before the Court by Mr Matti Wuori , a lawyer practising in Helsinki .

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

On 3 May 1994, N was charged before the Helsinki District Court ( käräjäoikeus , tingsrätt ) with aggravated narcotics offences concerning at least 30 kilos of cannabis (case R 94/2284). He had stated to the police that he had committed several narcotics offences in 1992-1994 and incriminated several other people during the police investigations. The case was adjourned until 17 May 1994, as the police investigations had not been finished.

N's case was heard on 17 and 31 May 1994. N confessed to the District Court that he had dealt in about 200 kilos of cannabis. The case was adjourned until 14 June 1994 as the police investigations continued.

On 14 June 1994, N was charged with an additional aggravated narcotics offence which he confessed to. The case (R 94/2284) was again adjourned until 21 June 1994.

At the hearing on 21 June 1994, N repeated all his statements to the police and stated that he would stand by them. N's case was joined with another case (R 94/1409).

At some point during the proceedings against N, the applicant had been detained on remand on suspicion of aggravated narcotics offences, apparently on the basis of the information revealed to the police by N. On 5 July the applicant was charged with 13 aggravated narcotics offences before the District Court. (The file is incomplete as regards the beginning of the proceedings against the applicant.)

On 5 July 1994, there was also a hearing in the case R 94/1409 against N and twelve other accused, concerning several aggravated narcotics offences. Several charges were brought against N and the co-accused. The case was adjourned until 19 July 1994.

At the hearing on 19 July 1994 before the District Court the applicant's case, which had so far been heard separately from N's case, was joined to the latter. N stated that he would not repeat all his statements made in the police investigations. The applicant's legal counsel said that he intended to put some questions to N later.

The next hearing took place on 2 August 1994. When asked by the applicant's legal counsel, N stated that he had not dealt in drugs with the applicant.

On 16 August 1994, there was a further hearing in the case, which was again adjourned until 30 August 1994. (The complete minutes of that hearing have not been filed.)

In a hearing on 30 August 1994, yet another case was joined to the applicant's case. There were now a total of 20 accused, including the applicant and N. N stated that at this stage he did not want to repeat everything he had said about some of the accused.

On 13 September 1994, there was another hearing in the case before the District Court. The public prosecutor submitted several police investigation reports to the court. The applicant's legal counsel stated that it was his impression that according to N the applicant had not dealt in any drugs. When asked by the counsel, N referred to what he had said before. The case was adjourned until 27 September 1994.

On 27 September 1994 the case was heard again. The public prosecutor submitted new police investigation reports to the court. N refused to comment on any of his statements and stated that he would remain silent. He also stated that he would not answer questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The case was adjourned until 11 October 1994.

The applicant's case was heard again on 11 October 1994 and it was adjourned until 25 October 1994.

At the hearing on 25 October 1994, co-accused H confessed that he had been one of the two main financiers of the drug trafficking. The other was allegedly N. The applicant's legal counsel stressed that N had not stated anything that would incriminate the applicant in the case. The District Court convicted N of 13 aggravated narcotic offences and some other offences and sentenced him to twelve years and six months' imprisonment. H was convicted of ten aggravated narcotics offences and some other offences and sentenced to eleven years' imprisonment. Another co-accused was also convicted of narcotics offences and sentenced to a term of imprisonment. The rest of the case was adjourned until 8 November 1994.

On 8 November 1994 the case was heard again. The public prosecutor submitted to the District Court a report, dated on 7 November 1994, concerning telecommunications between the accused. The applicant's counsel gave his closing speech and commented on the report on telecommunications, without requesting a further adjournment on the basis of the report. The District Court convicted the applicant of eleven aggravated narcotics offences, committed in complicity with N and another co-accused, and convicted him to twelve years' imprisonment. The conviction was mainly based on N's statements supported by some co- accused's and witnesses' statements and by circumstantial evidence. The applicant was detained on remand.

The applicant appealed to the Helsinki Court of Appeal ( hovioikeus , hovrätt ), requesting an oral hearing before the Court of Appeal. He stated, inter alia , that N had repeated several times during the proceedings before the District Court that the applicant had not dealt in narcotics with N. Furthermore, N's statements in the police investigations in so far as concerned the applicant had been very vague and had had no reference to any factual situation. The applicant also argued against the value of the report on telecommunications as evidence, as the report had appeared to be incomplete. The applicant named several persons that he wished to be heard before the Court of Appeal: e.g. a co-accused S and new witnesses J and V as regards the value of the report on telecommunications as evidence, and the co-accused H as regards his confession. On 27 April 1995 the Court of Appeal upheld the District Court's judgment without holding an oral hearing.

On 8 September 1995 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal.

COMPLAINTS

The applicant complains under Article 6 §§ 1, 2 and 3(b) and (d) of the Convention that he was not afforded a fair and public hearing by an independent and impartial tribunal in the criminal proceedings against him. He refers, in particular, to the following aspects in this respect:

1. His conviction was based on the statements of his co-accused N, who had never repeated those statements in the applicant's presence and had, moreover, retracted his earlier statements insofar as concerned the applicant; and the Court of Appeal refused to admit new counter-evidence offered by him.

2. He was not presumed innocent until proved guilty.

3. The police report concerning telecommunications between the accused was produced only at the last hearing of the District Court, on the day when the court pronounced its judgment.

THE LAW

1. The applicant complains that his conviction was based on the statements of his co-accused N, who had never repeated those statements in the applicant's presence and had, moreover, retracted his earlier statements insofar as concerned the applicant. He also complains that the Court of Appeal refused to admit new evidence offered by him. He claims a violation of Article 6 §§ 1 and 3(d) of the Convention, which, insofar as relevant, provide:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...

...

(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 Court first recalls that its task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair (see, e.g., the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46; and the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 67).

All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with Article 6 §§ 1 and 3(d), provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness is making his statement or at some later stage of the proceedings (see, e.g., the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, § 41; and the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43).

In the present case there were eight hearings before the District Court at which the applicant and N were both present. On 13 September 1994 the applicant's counsel put to N a question which he answered. It appears that the applicant's counsel did not put any further questions to N even though he had the opportunity to do so on several other occasions. While N's persistence in remaining silent may have made further questioning futile, in the circumstances of the present case this neither discloses a lack of equality of arms nor justifies the conclusion that the judicial authorities denied the applicant the possibility of examining the witnesses in conformity with Article 6 §§ 1 and 3(d).

As to the complaint that the applicant's conviction was based on N's statements not repeated in the applicant's presence, the Court recalls that it is in principle for the national courts to assess the evidence before them. There is no indication that, by regarding the original statements of N as credible, the national courts acted arbitrarily or otherwise exceeded their margin of appreciation in this respect.

As regards the complaint concerning the Court of Appeal's refusal to admit new evidence, the Court refers to what is said above and recalls that Article 6 does not lay down any rules on admissibility of evidence as such, which is therefore primarily a matter of regulation under national law (see e.g. the Schenk judgment cited above). In the present case, the applicant requested the Court of Appeal to hear evidence from two co-accused, who had already been heard by the District Court, and two new witnesses concerning the report on telecommunications. The Court finds no indication that the Court of Appeal's refusal to admit new evidence was in any way arbitrary or otherwise exceeded its margin of appreciation in this respect.

An examination by the Court of this part of application as a whole does not, therefore, disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains that he was not presumed innocent until proved guilty. He invokes Article 6 § 2 of the Convention, which reads as follows:

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

The Court first recalls that the presumption of innocence guaranteed by Article 6 § 2 requires, inter alia , that when carrying out their duties, the members of the 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 the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 33, § 77).

Assuming that the domestic remedies have been exhausted concerning this complaint, the Court finds no indication that the trial court started from the presumption that the applicant had committed the offences with which he had been charged. Thus, there is no appearance of a violation of Article 6 § 2.

It follows that this complaint, also, is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant finally complains that he was not afforded adequate time and facilities for the preparation of his defence as the police report on telecommunications between the accused was produced only at the last hearing of the District Court, which was held on the same day when the court pronounced its judgment. The applicant invokes Article 6 § 3(b) of the Convention, which reads as follows:

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

...

(b) to have adequate time and facilities for the preparation of his defence;

...”

The adequacy of time and facilities required by this provision will depend upon the particular facts of the case. However, where an accused considers that the time allowed is inadequate, he should, if possible under domestic law, seek an adjournment or postponement of the hearing (cf., e.g., the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 45, § 98).

In the present case the Court notes that the applicant neither questioned the alleged lack of facilities before the District Court nor requested an adjournment of the case. The applicant's counsel gave his closing speech during the final hearing. He did not request an adjournment of the case and, insofar as the new report was concerned, mainly denied its value as evidence and left the case to be decided. The Court, therefore, concludes that the applicant did not raise the complaint, which is now made, before the District Court. Although the applicant, in his submissions to the Court of Appeal and to the Supreme Court, requested witnesses to be heard and more complete information to be produced concerning the report on telecommunications, in these circumstances, the applicant cannot be regarded as having exhausted the domestic remedies available to him under Finnish law.

It follows that the applicant has not, in accordance with Article 35 § 1 of the Convention, complied with the condition as to the exhaustion of domestic remedies regarding this part of the application.

4. The Court concludes that the examination of the application as a whole does not disclose any appearance of a violation of Article 6 of the Convention, and, thus, the application must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President