Information Note on the Court’s case-law 17

April 2000

Kuopila v. Finland - 27752/95

Judgment 27.4.2000 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Non-disclosure to accused of material submitted to court by prosecution: violation

(Extract from press release)

Facts : The applicant, Kaija Kuopila, a Finnish national, was born in 1927 and lives in Uusikaupunki (Finland).

The applicant is an art dealer. At the beginning of November 1990, she obtained through a transfer of a sales commission a painting that was to be sold. A statement of 1955, according to which the painting was an authentic work of Helene Schjerfbeck (a famous Finnish artist) was attached on the back of the painting. The applicant sold the painting but apparently did not pay the amount due to the original owner of the painting.

The applicant was charged with aggravated fraud and aggravated embezzlement before the District Court of Hyvinkää in autumn 1991. Later she was accused of four additional counts of embezzlement and fraud. In February 1992, the applicant who had doubts as t o whether the painting was authentic, requested the Court to authorise and order the examination of its authenticity. Her request was refused. In May 1992 the District Court convicted the applicant as charged and sentenced her to two years and six months’ imprisonment.

In July 1992 the applicant, having appealed to the Court of Appeal, requested the Prosecutor to order an investigation into the authenticity of the painting. The police obtained from the National Gallery of Finland a statement according to wh ich the painting was not authentic. In August 1993 the Prosecutor submitted the supplementary police report, including the above-mentioned statement, to the Court of Appeal. In the accompanying letter the Prosecutor, finding that the non-authenticity of th e painting did not essentially affect the assessment of the case, asked the Court of Appeal to take the report into account. On 14 September 1993, the Court of Appeal upheld the judgment of the District Court without inviting the applicant to submit commen ts or holding an oral hearing. The court did not make any separate decision as to whether the supplementary police report had been taken into account as evidence or not.

The applicant found out about the above-mentioned statement in the autumn of 1993. On 14 November 1993 the applicant requested leave to appeal to the Supreme Court. She referred to the fresh statement and maintained that if this information had been available in the lower courts the outcome of the case would have been a different one. On 24 May 1994 the Supreme Court refused the applicant leave to appeal.

On 22 July 1996, the Deputy Parliamentary Ombudsman found that the Prosecutor, by failing to communicate the supplementary police report to the applicant or her representative, had shown ne gligence in respect of his official duties. As a result, the Deputy Ombudsman addressed a critical remark to the Prosecutor.

The applicant complained that her right to a fair trial as guaranteed under Article 6 of the European Convention on Human Rights ha d been violated as vital evidence, i.e. the statement form the National Gallery of Finland, was withheld from her.

Law : Article 6 of the Convention - The Court noted that the supplementary police report, including the above-mentioned statement, was submitt ed to the Court of Appeal by the Prosecutor only about a month before it delivered its judgment. It did not refer to the fresh report in its judgment. Whether the Court of Appeal put any emphasis on the report in its assessment of the case is not known. Th e Court found, however, that this was not decisive from the point of view of the applicant’s right to adversarial proceedings. The Court recalled that under the principle of equality of arms, as a feature of the wider concept of a fair trial, each party mu st be afforded a reasonable opportunity to present his or her case in conditions that do not place him or her at a disadvantage vis-à-vis his or her opponent. The Court therefore concluded that there has been a violation of Article 6 § 1 of the Convention.

Conclusion : violation (unanimously).

Article 41 of the Convention - The applicant claimed that she had suffered non-pecuniary loss of FIM 200,000 as a result of the violation of Article 6 of the Convention as, according to her, her sentence would have been six months shorter if the fact that the painting was fake had be en taken into account. Since the Court cannot speculate about the outcome of the trial had it been in conformity with Article 6, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of guarantees of that A rticle. The Court, having made its assessment on an equitable basis, awarded the applicant FIM 15,000 in respect of non-pecuniary damage, and FIM 30,000 in respect of the applicant’s legal fees and expenses less the amount already received for legal fees f rom the Council of Europe by way of legal aid.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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