Communicated on 24 March 2014

FOURTH SECTION

Application no. 38147/12 Ilpo KUOKKANEN and Harri JOHANNESDAHL against Finland lodged on 15 June 2012

STATEMENT OF FACTS

The applicants, Mr Ilpo Kuokkanen and Mr Harri Johannesdahl , are Finnish nationals who live in Helsinki . They are represented before the Court by Mr Kari Uoti , a lawyer practising in Helsinki .

A. The circumstances of the case

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

The case concerns criminal proceedings in which a judgment was rendered against the applicants by the Helsinki Appeal Court ( hovioikeus , hovrätten ) on 28 May 2009. On 10 March 2010 the Supreme Court ( korkein oikeus , högsta domstolen ) refused the applicants leave to appeal and the Appeal Court judgment thus became final.

On 6 April 2010 the first applicant lodged an extraordinary appeal before the Supreme Court, requesting it to annul the Appeal Court judgment of 28 May 2009 and to refer the matter back to it for a new examination. He claimed that the composition of the court had not been competent ( päätösvaltainen , domför ) as one of the appeal court justices had been biased in the matter.

On 1 November 2010 the Supreme Court found that the justice in question had been biased in the case and that therefore the composition of the court had not been competent. The Supreme Court thus annulled the Appeal Court judgment as far as the first applicant was concerned and referred the matter back to the Appeal Court for a new examination.

Subsequently the second applicant also requested the annulment of the Appeal Court judgment as far as he was concerned. The outcome of his request was the same as for the first applicant. The public prosecutors never requested annulment of the Appeal Court judgment.

During the reopened Appeal Court proceedings the applicants claimed that the Appeal Court could no longer examine those charges which had been dismissed by the final Appeal Court judgment of 28 May 2009 as the applicants ’ request for reopening did not concern these parts of the case. They referred both to the prohibition of reformatio in peius a nd to the ne bis in idem principle. On the other hand, the public prosecutors claimed that the case had been referred back to the Appeal Court in its entirety. They claimed that, as the competency of the composition was a matter that concerned all parties, the prohibition of reformatio in peius did not apply and the examination of the case was to be conducted as if the case had only now become pending before the Appeal Court.

On 15 April 2011 the Appeal Court dismissed , without examining the merits , those charges which had already been finally decided by the Appeal Court judgment of 28 May 2009. The court noted that the public prosecutors had not challenged the impartiality of the composition of the court but that only the applicants had made such claims. Therefore, also taking into account the case-law of the European Court, the previously dismissed charges could no longer be examined.

By letter dated 31 May 2011 the public prosecutors appealed to the Supreme Court against this Appeal Court decision. They claimed that the rules on impartiality were designed to protect all parties t o the proceedings. In such a situation the prohibition of reformatio in peius was no longer applicable. As the earlier judgment was annulled in respect of the applicants, there existed no earlier final judgment concerning them. The applicants disagreed with the public prosecutors ’ conclusions. They pointed out that they did not even have any interest or right to appeal against the Appeal Court judgment of 28 May 2009 since it was favourable to them. A final judgment could not be annulled without any specific request to that effect.

On 26 September 2011 the Supreme Court granted the public prosecutors leave to appeal.

On 29 December 2011 the Supreme Court quashed the Appeal Court decision and referred the case back to it for a new examination. It found that the prohibition of reformatio in peius was valid in the Finnish legal system and that it was applied both in ordinary and extraordinary appeal proceedings. The question of whether a case was annulled and referred back for a new examination in its entirety or only in part depended on the nature of the procedural error in the case at hand. If the procedural error affected the whole judgment and the proceedings, the case was referred back in its entirety even if the judgment had been favourable to the appellant. The court noted that in the Convention or in its Protocols there was no specific mention of the prohibition of reformatio in peius but that it formed a part of the general fair trial guarantees. The Committee of Ministers had made a Recommendation on this subject in 1992. However, in the case-law of the Court no similar case was to be found. On the other hand, there was case ‑ law about a judge ’ s partiality, which issue had been considered by the Court to be such a grave procedural error that it always led to the annulment of a judgment. Nor did the principle of ne bis in idem prevent new examination of the case if in earlier proceedings a grave procedural error had taken place. All partiality grounds were unconditional. In the present case the lack of competence of the composition concerned the whole Appeal Court proceedings and the judgment in its entirety. Therefore the court had earlier annulled the Appeal Court judgment of 28 May 2009 in its entirety. As the prohibition of reformatio in peius only applied to judgments which had become partially final, it did not apply to the present case in which a final judgment had been completely annulled. The Appeal Court judgment of 28 May 2009 was thus no longer binding in any respect. The Supreme Court reached this conclusion by 3 votes to 2. The decision contains two dissenting opinions.

B. Relevant domestic law

According to Chapter 26, section 2, subsection 1, of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ; as amended by Act no. 381/2003 ),

“[ i ]n a criminal case, the Court of Appeal may amend, in favour of the defendant, the judgment that the District Court has given on the charges even if only the public prosecutor has appealed against this.”

COMPLAINT

The applicants complain under Article 6 of the Convention about a lack of a fair trial as the prohibition of reformatio in peius was not respected by the Supreme Court in its decision of 29 December 2011. The court acknowledged that this prohibition was valid in the Finnish legal system but it still decided the case at hand in a manner that completely ignored this prohibition.

QUESTION TO THE PARTIES

Did the applicant s have a fair hearing in the determination of the criminal charges against t h e m, in accordance with Article 6 § 1 of the Convention? In particular, w ere the fair trial guarantees respected as regards the prohibition of reformatio in peius ?