FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20388/02
by Jussi Mikael UOTI
against Finland
The European Court of Human Rights (Fourth Section), sitting on 7 November 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 17 May 2002,
Having regard to the partial decision of 14 September 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jussi Uoti, is a Finnish national who was born in 1964 and lives in Turku. He is represented before the Court by Mr Jarmo Hakanen, a lawyer practising in Turku. The Finnish Government (“the Government”) are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
At the end of 1995 the applicant was questioned by the police about suspected dishonesty as a debtor. Subsequently, charges were brought against him.
The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The court received testimony from the defendants, the complainants and over 40 witnesses.
On 29 January 1999 the applicant was convicted of four counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years and two months’ imprisonment.
On 30 April 1999, after two extensions of approximately two months in the time-limit for lodging the appeal, the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten) against the judgment. In his grounds of appeal he maintained, inter alia, that the written statements of a witness, Mr G. resident in Guernsey, who had not been questioned during the pre-trial investigations or heard as a witness before the District Court, should not have been taken into account as he had not had a possibility to respond to that important evidence. Mr G. represented a company selling off-shore companies and had produced memoranda in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen). In a subsequent letter to the Court of Appeal he also requested the court to hear three witnesses (A, B and C) and to listen to recordings of telephone conversations in order to prove that the applicant’s brother was the only person involved. The applicant wanted to show that by hearing A, a graphologist, he would be able to substantiate that certain documents had been forged and that by hearing B and C, who had recorded the telephone conversations, the content of those conversations would prove his innocence.
In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, the request of the applicant’s co-accused brother that Mr G. be heard as a witness. It stated that it would provide further reasons in its judgment.
On 31 October 2000 the Court of Appeal held a preparatory hearing. The applicant’s co-accused unsuccessfully renewed the request for Mr G. to be heard as a witness. The court stated that it would give reasons for its refusal in its judgment. It also refused to hear A, B and C and to listen to the recordings.
On 30 March 2001 the Court of Appeal convicted the applicant of six counts of dishonesty as a debtor, four counts of aggravated tax fraud and five counts of aiding and abetting accounting offences. It sentenced him to five years and eight months’ imprisonment and ordered his immediate detention. He also lost his military rank.
As regarded the reasons for not hearing Mr G. as a witness, the court held, inter alia, that:
“The Court of Appeal notes that no request to hear Mr G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.”, had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant’s brother, who was a co-defendant] relied, as written evidence, on [some] documents drawn up by Mr G. without requesting that Mr G. be heard as a witness ...
The documents allegedly drawn up by Mr G. were not drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court Mr G. was not proposed as a witness and the fact that the parties in the Court of Appeal have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents.
The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than Mr G. ...
The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant]. The question whether Mr G. himself thought that he was involved only in legal investment activities is therefore not relevant.
The documents drawn up by Mr G. are however relevant in assessing ... [the applicant’s] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has not however decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which Mr G. cannot have anything relevant to say.
The Court of Appeal has heard witness S., as requested by [the applicant’s brother], about the events relating to the documents. The testimony of S., which in [the applicant’s brother’s] opinion proves the content of the discussions with Mr G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that Mr G. be heard as a witness either.”
As regard the applicant’s request to hear A, B and C and to listen to the recordings of the telephone conversations, the Court of Appeal further held that:
“The hearing of ... A, B and C ... has been considered unnecessary.
...
It has also not been necessary to listen to the recordings submitted by [the applicant] as the National Bureau of Investigation has transcribed them in writing. For this reason it is also unnecessary to hear B and C as witnesses. The Court of Appeal has received written reports from the National Bureau of Investigation concerning, inter alia, the forgeries alleged by [the applicant], which further supports the view that it is unnecessary to hear A as a witness.”
The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
B. Relevant domestic law and practice
If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).
Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons.
Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court’s conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant’s need for legal protection.
The provisions concerning the Court of Appeal’s duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the refusal of the Court of Appeal to hear Mr G. as a witness had deprived him of his right to obtain the attendance and examination of witnesses on his behalf. Mr G. had been of crucial importance to his case as the documents allegedly drawn up by him had been decisive in leading the Court of Appeal to conclude that there had been an intentional plan or conspiracy to commit the offences. Mr G. had managed all the companies which had allegedly transferred assets abroad illegally and could have provided crucial information. Mr G. had not even been heard in the pre-trial investigations, which had made it impossible to verify the content of the documents allegedly drawn up by him. The refusal to hear Mr G. as a witness had also violated the presumption of innocence.
THE LAW
The applicant complained about a violation of the rights of the defence in respect of witnesses and the presumption of innocence. Article 6 §§ 1-2 and 3(d) read in relevant part:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to 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 Government contested the allegations. The applicant had never requested that Mr G. be heard as a witness whereas two other defendants had done so. They had not however requested that Mr G. be heard during the pre-trial investigation or in the District Court although the documentary material related to the plan to transfer the funds had been presented to the District Court on 29 May and 10 June 1998. The fact that the applicant and his brother had controlled some companies had been unknown until the said documents had been obtained from the Guernsey authorities. In his appeal against the lower court’s judgment the applicant had criticised the court for not having heard Mr G. as a witness, but he had not however identified him as his witness in the Court of Appeal, but had identified S. The Court of Appeal extensively reasoned its decision not to hear Mr G. as a witness, finding that the documents were normal written evidence and had not been drawn up for the purposes of the proceedings. They could be assessed therefore on their own without obtaining oral evidence from their author. The court thus assessed, within its discretionary power, the importance of the documents for the case and whether it was necessary or advisable to hear Mr G. as a witness. The court found that the documents had obviously been drawn up by Mr G. as nothing pointed to the contrary. It further stated that nothing in the parties’ submissions displayed any need to hear the oral evidence of Mr G. The parties had been able to comment on the documents in question both with regard to their contents and their credibility. The court had taken account of S.’s testimony and had not considered it necessary to hear also Mr G. on the content and significance of Mr G.’s memoranda. Mr G.’s testimony would not have produced any new decisive evidence since the question whether Mr G. believed that he was involved in legal investment activities did not have any particular bearing on the outcome of the case.
The Government pointed out that the reasons provided in the Court of Appeal’s judgment described, inter alia, the oral evidence concerning the contacts between the applicant, his co-accused brother and Mr G. The judgment also set out how the court assessed the applicant’s activity when it deemed him guilty of the offences. It was also found that hearing Mr G. in person was manifestly unnecessary. The court closely scrutinised the transactions between the different companies controlled by the applicant and his brother. The documents drawn up by Mr G. had clarified certain matters but they had not been decisive. The court had compared the documents with the transactions and had found them to be coherent.
The Government emphasised that the appellate court had regarded the documents drawn up by Mr G. as written evidence and had assessed them as such. It had not decided the relevant part of the case on the basis of those documents alone but by assessing the importance of the documents as a whole, taking into account other written evidence and the statements of witnesses S. and M.G. The court stated that the only evidence concerning the second phase of the transfer plan linking the applicant to the alleged offence was the applicant’s fax to Mr G., a fax that the applicant had denied having sent. The court had concluded that the denial had been of minor importance since it had been shown that the moneys had reached the company in question, which was controlled by the applicant, and had been forwarded by the applicant. The court had thus found it proved that the applicant had been in control of the sums that had been transferred and that he had used them to that effect. It was evident from the court’s reasoning that the documents drawn up by Mr G. were used as evidence to portray the transactions between different companies controlled by the applicant and his brother. The transactions between certain companies and certain bank accounts had taken place and the applicant had been found guilty. Hearing Mr G. in person would not have changed that. The court had received oral evidence from a total of 22 witnesses. There was accordingly no appearance of an unfair trial.
The applicant pointed out that the court had based itself on the documents allegedly drawn up by Mr G. although he had not been heard as a witness at any stage of the proceedings and despite the explicit request of the applicant’s co-defendants that Mr G be heard as a witness in the Court of Appeal. What was at issue was not only the rights of the defence to obtain the attendance of witnesses against him in order to put questions to and examine the reliability of that person, but also the fact that the prosecution had presented and the court had admitted as evidence against the applicant documents allegedly drawn up by a person who had not been heard at any stage of the proceedings, even though the origin of the documents and their contents were disputed. It was for the prosecution to call Mr G. as a witness since it had relied on the documents in question. It had certainly not been the responsibility of the defendant to call a witness against himself. No attempt had been made by the prosecution to call Mr G. as a witness. The documentary evidence in question should therefore have been declared inadmissible by the courts.
The applicant maintained that the Court of Appeal’s refusal to hear Mr G. as a witness prior to the principal hearing had also violated the presumption of innocence and had shown that the court had prejudged his guilt. He had been given to understand that the court was not going to admit the documents in question to the case file. However, the Court of Appeal’s judgment had taken him by surprise in that the court had based its judgment on those very documents.
Lastly, the applicant maintained that the documentary evidence in question had per se been decisive for the outcome of the case.
The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares the remainder of the application admissible, without prejudging the merits of the case.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy