Resolution CM/ResDH(2009)124 [1]

Execution of the judgment of the European Court of Human Rights

Mild and Virtanen against Finland

(Applications Nos. 39481/98 and 40227/98 , judgment of 26/07/2005 , final on 26/10/2005 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the lack of a fair trial as the applicants had not had a right to examine persons regarded as witnesses for the purposes of Article 6§3(d) of the Convention (violations of Articles 6§§1 and 3(d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Finland ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)124

Information about the measures to comply with the judgment in the case of

Mild and Virtanen against Finland

Introductory case summary

The case concerns the unfairness of certain criminal proceedings brought against the applicants in 1995 in that they were denied the right to examine persons regarded as witnesses for the purposes of Article 6§3(d) of the Convention, whose statements were taken into account as evidence by the Court of Appeal. In other proceedings these witnesses had already been convicted by the District Court of the offence, of which the applicants were charged with as their presumed accomplices.

In this context, the Court stated that the national legislation at the time was inadequate in that it provided no basis for ensuring the attendance of these witnesses in the proceedings against the applicants (violations of Articles 6§§1 and 3 (d)).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

7 246 EUR

12 246 EUR

Paid on 26/01/2006

b) Individual measures

According to Chapter 31 of the Code of Judicial Procedure, extraordinary appeals may be lodged against final decisions if, inter alia , “a procedural error has been committed which may have had an effect on the decision”. This provision allows the applicants to request the reopening of criminal proceedings found to violate the Convention, if they wish to do so.

II. General measures

Chapter 17, section 18 of the Code of Judicial Procedure was amended by Law 690/1997 which entered into force on 1 October 1997. According to the new provisions, if a person to be heard as a witness has already been convicted of the same offence in other proceedings, he cannot be considered as a witness. In this kind of situation, the provisions on the summonsing, absence and hearing of a party apply, insofar as appropriate, also to that person. In this respect, the direct effect afforded by the Finnish courts to the case-law of the European Court of Human Rights seems to be sufficient to prevent new, similar violations.

The judgment of the European Court has been published in the Finlex database. A summary of the judgment in Finnish has been published in the same database. Moreover, the judgment has been sent out to the relevant national authorities.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Finland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies