FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30409/96

by Harri PELTONEN

against Finland

The European Court of Human Rights ( Fourth Section) sitting on 11 May 1999 as a Chamber composed of

Mr G. Ress , President ,

Mr M. Pellonpää ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vajić , Judges ,

Mr J. Hedigan ,

Mrs S. Botoucharova , Substitute Judges ,

with 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 22 February 1996 by Harri PELTONEN  against Finland and registered on 8 March 1996 under file no. 30409/96;

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 1962 and currently serving his prison sentence in Kerava Youth Prison in Kerava , Finland. He is represented before the Court by Ms Tiina Nystén , 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 aggravated narcotics offences in 1992-1994 and incriminated several other people, including the present applicant, during the police investigations. The case was adjourned until 17 May 1994 as the police investigations had not finished.

N.’s case was heard on 17 and 31 May 1994. N. confessed to the 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 19 May 1994 the present applicant , Mr Peltonen , was taken into police custody as he was suspected of an aggravated narcotics offence on the basis of the information revealed by N. to the police. The applicant was brought before the Helsinki District Court four days later, i.e. on 23 May 1994. The court ordered his detention on remand until the first hearing of his case (case R 94/3064) on 14 June 1994.

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

There was a hearing in the present applicant’s case (case R 94/3064) before the Helsinki District Court on 14 June 1994, in which the applicant was charged with an aggravated narcotics offence and illegal possession of a firearm. The applicant was suspected of having had in his possession 12.5 kilos of cannabis with intention to deal therein in March 1994 and a firearm. The applicant confessed to the illegal possession of a firearm and denied the narcotics offence. The case was adjourned until 21 June 1994.

On 21 June 1994 before the District Court N. repeated all his statements to the police and stated that he would stand by them. N.’s case (case R 94/2284) was joined with another case (R 94/1409).

The applicant’s case (R 94/3064) was heard on 21 June 1994 separately from N.’s case. The applicant’s case was adjourned until 5 July 1994 as the police investigations had not finished.

On 5 July 1994 the applicant’s case was again heard separately from N.’s case. The applicant was additionally charged with several aggravated narcotics offences. He was suspected of having possessed 10-15 kilos of cannabis in April-May 1993, 14-15 kilos of cannabis in June 1993, 20 and 12.5 kilos of cannabis in August 1993, 20 kilos of cannabis in September 1993, 20 kilos of cannabis October 1993 and 25 kilos of cannabis in November 1993. The applicant denied all the additional charges. The case was adjourned until 19 July 1994.

On 5 July 1994 there was also a hearing in case R 94/1409 (the case number used after the joinder of N.’s case with another case) against N. and now twelve other accused, concerning several aggravated narcotics offences. Several charges were brought against N. and other co-accused. The case was adjourned until 19 July 1994.

On 19 July 1994 the applicant’s case (R 94/3064) was again heard separately from N.’s case. The applicant denied all the charges and stated that they were all based solely on N.’s statements made in the course of a police investigation and a hearing at which the applicant was not represented and that there was no other evidence against him. He requested to be released as he had not been given an opportunity to question N. He also submitted that N. had changed his statements to the police so that these could not be found credible. The public prosecutor objected to the applicant’s request, stating that the applicant would, if released, interfere with the investigations which had not yet finished. The case was adjourned until 2 August 1994.

By this time there was also a hearing in case R 94/1409 against N. and eighteen other accused (not including the applicant). N. stated to the District Court that he would not repeat his previous statements and retracted them. The case was also adjourned until 2 August 1994.

On 2 August 1994 the applicant’s case (R 94/3064) was joined with yet another case (R 94/3270) in which there were five other accused concerning the same drug trafficking offences (including H. to whom the applicant had allegedly given the drugs). The public prosecutor stated that the investigations were still unfinished and requested that the case should be adjourned. The applicant stated that he would respond to the charges in detail as soon as N. can be questioned. H. denied that the applicant had had anything to do with the narcotics. The case was adjourned until 16 August 1994.

On 2 August 1994 there was also a hearing in case R 94/1409 against N. and several other accused. The case was adjourned until 16 August 1994.

On 16 August 1994 there was a hearing in the applicant’s case (now R 94/3270 after the joinder of the applicant’s case with H.’s case). The applicant requested to be released as there was nothing left to “interfere with” in the investigations and as he had still not been given a chance to put questions to N. The case was adjourned until 30 August 1994.

By this time there was also a hearing in case R 94/1409 against N. and others. The case was adjourned until 30 August 1994.

On 30 August 1994 there was a hearing in both cases (R 94/1409 and R 94/3270) which were now joined. There was a total of 20 accused including the applicant, N. and H. The public prosecutor asked N. whether the applicant had been with H. collecting the drugs from N. N. answered “no”. N. also stated that at his stage he did not want to repeat everything he had said about H., the applicant and two other accused. The public prosecutor withdrew a part of the charges (concerning five kilos of cannabis at the end of 1993) against the applicant but stated that the applicant had dealt in two kilos of cannabis on 11 February 1994. The applicant’s legal counsel asked N. questions about the latter’s health. After this questioning the counsel stated that N. was ill and could not properly concentrate on the questions put to him during this hearing. She also submitted that there were several discrepancies between N.’s various statements and that N.’s statements did not support the charges against  the applicant. The case was adjourned until 13 September 1994.

On 13 September 1994 there was another hearing in case R 94/1409 before the District Court. The public prosecutor submitted several police investigation reports to the court. 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 any questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The applicant’s legal counsel stated that she had prepared questions for N. but could not put them to him at the moment as N. had said that he would not answer any questions. The case was adjourned until 11 October 1994. The applicant was ordered to be released from detention.

At the District Court hearing on 11 October 1994 N. again refused to repeat his statements concerning the applicant, H. and two others as he could not “take the responsibility if innocent men were convicted on the basis of his statements”. The applicant’s legal counsel put a question to N. (the question and any answer to it is not on the file). The case was adjourned until 25 October 1994.

On 25 October 1994 the case was heard again. The applicant submitted that the only evidence against him was the earlier statements of N. and that N. had withdrawn them. N. was convicted of 13 aggravated narcotics offences and two counts of possession of an illegal firearm and sentenced to twelve years and six months’ imprisonment. Two other accused were convicted of different narcotics offences and sentenced to imprisonment. The rest of the case was adjourned until 8 November 1994, including the applicant’s case.

On 8 November 1994 the case was heard again. The public prosecutor submitted a report, dated 7 November 1994,  to the court concerning telecommunications between the accused. The report had been served on the applicant’s legal counsel the previous afternoon. The public prosecutor submitted a complete list of the telephone calls, with details of their duration and dates, but the legal counsel was provided only with a list concerning the number of the phone calls. The applicant’s counsel commented telecommunications between the accused, without requesting a further adjournment on the basis of the new report. The counsel gave her closing speech in which the fact that the report concerning telecommunications had been submitted to the counsel only on the previous day was not raised. The District Court convicted the applicant of eight aggravated narcotics offences and illegal possession of a firearm and sentenced him to eight years and six months’ imprisonment. The applicant was detained on remand. The reasoning of the court reads as follows:

(translation from Finnish)

“[The applicant] has denied all the charges except for charge number 31 [concerning illegal possession of a firearm]. ...

The conviction is based on N.’s statements. The District Court has stated above why it has found N.’s statements credible. N. told about the applicant’s participation at a fairly early stage of the investigations and in a fairly detailed manner. N. revealed that [the applicant] had assisted H. when H. collected the cannabis from N. N. identified the suitcase confiscated from [the applicant] as similar to the suitcase used by [the applicant] when collecting the cannabis from him. H. stated that [the applicant] had taken care of certain things for him. N.’s statement concerning the close co-operation between H. and [the applicant] is also supported by the fact that [the applicant] has lived with his girlfriend in a flat rented by H. from the City of Helsinki. Also Mrs H. has testified that [the applicant] had helped H. with all kinds of things. [The applicant] has, inter alia , witnessed H.’s signature to a deed concerning H.’s flat in Porvoo . One of the witnesses, M., has testified that [the applicant] had been “hanging around” a garage owned by N. [The applicant] had been there fairly often either alone or with H. [The applicant’s] girlfriend has had a car put to her disposal by H. [The applicant] has stated that a mobil phone line was opened in his name in the spring 1994. The mobile phone was, however, in the use of H. and was also left with H. This has also been certified by Mrs H.

36,000 Finnish Marks (FIM) was confiscated from [the applicant] when he was arrested. FIM 25,000 of the above-mentioned money was hidden in the body of a car. Considering that [the applicant] has testified that he has been unemployed for quite some time now it is not credible that the money was earned by him as a locksmith.

H. has had much more telephone connections with [the applicant] than any other accused in this case. In addition to that [the applicant] has been in close contact with the rest of the accused.

It must be found that [the applicant] has received at least FIM 36,000 as the illegal profit of his actions.”

On 7 December 1994 the applicant appealed to the Helsinki Court of Appeal ( hovioikeus , hovrätt ) , requesting an oral hearing before the Court of Appeal. He stated that he should not have been found guilty on the basis of N.’s statements as there was no other evidence against him and as N. had withdrawn his statements as far as the applicant was concerned. The applicant and N. did not appear before the court at the same hearing until 30 August 1994. At that hearing N. did not repeat his statements concerning the allegations against the applicant. The additional investigations did not finish until 27 September 1994, when N. declared that he would remain silent from then onwards. N. did not repeat his statements at the later stages of the proceedings and, thus, no questions were put to N. either by the applicant’s counsel or by the public prosecutor. According to the applicant, N.’s statements could not be regarded as credible and therefore, there was no evidence at all against him. He also pointed out that the report concerning telecommunications between the accused was finished on 7 November 1994 and submitted to the court and to the accused’s legal counsel on 8 November 1994, i.e. on the day of the conviction.

On 27 April 1994 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

1. The applicant complains that he was not given a fair trial as there was no equality of arms. The public prosecutor had questioned N. at a hearing at which the applicant was not represented and N. had never repeated his statements in the applicant’s presence. The public prosecutor had therefore been in a better position to examine N.’s statements. The applicant was not given the right to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him, as he was not able to put questions to N. He invokes Article 6 §§ 1 and 3 (d) of the Convention.

2. The applicant complains that he was not presumed innocent until proved guilty. He invokes Article 6 § 2 of the Convention in this respect.

3. The applicant also complains that he was not afforded adequate time and facilities for the preparation of his defence as the police report concerning telecommunications between the accused was served on his legal counsel on 7 November 1994 and the case was heard and decided on the following day. The public prosecutor had a much more detailed list than the defence counsel. He invokes Article 6 § 3 (b) of the Convention in this respect.

4. Finally, the applicant complains about the lack of an oral hearing before the Court of Appeal. He invokes Article 6 § 1 of the Convention in this respect.

THE LAW

1. The applicant complains that he was not given a fair trial as there was no equality of arms. The public prosecutor had questioned N. at a hearing at which the applicant was not represented and N. never repeated his statements in the applicant’s presence. The public prosecutor had therefore been in a better position to examine N.’s statements, and the conviction was based on those statements. The applicant was not afforded the right to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him, as he was not able to put questions to N.

The applicant invokes Article 6 §§ 1 and 3 (d) of the Convention which as far as relevant, reads as follows:

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

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

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 or not 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 (see, e.g., Eur. Court H.R., Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 470, § 67). The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair. 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 prior to the trial is not in itself inconsistent with Article 6 of the Convention, provided that the rights of the defence have been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statement or at a later stage of the proceedings (see, e.g., Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43).

In the present case there were five hearings at which the applicant and N. were both present. On 30 August 1994the applicant’s counsel put to N. certain questions concerning the latter’s health. On 11 November 1994 the applicant’s counsel again put a question to N. but it is not known whether the question was answered. It appears that the applicant’s counsel did not put any further questions to N. even though she had the opportunity on several other occasions. While N.’s persistence to remain silent may have made further questioning futile, in the circumstances of the present case this neither discloses lack of equality of arms nor justifies the conclusion that the judicial authorities denied the applicant the possibility of examining witnesses in conformity with Article 6 §§ 1 and 3 (d) of the Convention.

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.             

An examination by the Court of this complaint as it has been submitted 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 and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant 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 recalls first that the presumption of innocence guaranteed by Article 6 § 2 of the Convention 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 Eur. Court HR, Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 33, § 77).

Assuming that 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 of which he had been charged. Thus, there is no appearance of a violation of Article 6 § 2 of the Convention.

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.

3. The applicant also complains that he was not afforded adequate time and facilities for the preparation of his defence as the police report concerning telecommunications between the accused was served on his legal counsel on 7 November 1994 and the case was heard and decided on the following day. The public prosecutor had a much more detailed list than the defence counsel. The applicant invokes Article 6 § 3 (b) of the Convention which reads as follows:

“3. 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 the 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 or she should, if possible under domestic law, seek an adjournment or postponement of the hearing ( cf , e.g., Eur. Court HR, Campbell and Fell 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 her closing speech during the final hearing without requesting an adjournment of the case or requesting a more detailed list of the telecommunications between the accused. Moreover, the applicant did not raise this point in his appeal to the Court of Appeal either, referring to it only in his leave to appeal application submitted to the Supreme Court. 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 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. As regards the complaint concerning the lack of an oral hearing before the Court of Appeal, the Court recalls that in accordance with the Finnish reservation at the time, Finland could not guarantee a right to an oral hearing in proceedings before the appeal courts insofar as the Finnish law in force at the time of the proceedings did not provide such a right. The Court finds that this complaint is covered by the reservation.

It follows that this complaint is incompatible with the Convention ratione materiae and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President