AS TO THE ADMISSIBILITY OF
Application No. 17925/91
by Asko KAUNISTO
against Finland
The European Commission of Human Rights sitting in private
on 8 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 January 1991
by Asko KAUNISTO against Finland and registered on 14 March 1991
under file No. 17925/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen born in 1959 and resident
at Turku. He is an agricultural technician by profession and is
currently serving a prison sentence in the County Prison of the County
of Vaasa. Before the Commission he is represented by Mr. Heikki Salo,
a lawyer practising in Helsinki.
The facts of the case, as submitted on behalf of the applicant,
may be summarised as follows.
On 31 May 1989 the City Court (raastuvanoikeus, rådstuvu-
rätten) of Turku convicted the applicant of inter alia having assisted
three prisoners in escaping from a prison on 3 July 1988 as well as of
aggravated robbery of a bank on 14 July 1988 committed together with
two of the prisoners, R.J.H. and O. He was sentenced to six years'
imprisonment. The City Court held three hearings, on 5 April, 3 May
and 31 May 1989. Charges were presented against eight suspects for
various offences committed in connection with and after the escape.
The hearings were held in the County Prison of Turku.
At the first hearing parts of the pre-trial investigation
record were read out by the Court. Four witnesses were heard on
behalf of the Public Prosecutor. At the second hearing eight witnesses
of the prosecution were heard. On the robbery charges the City Court
had inter alia regard to a statement by a bank employee, R.H., at the
same time one of the complainants, that she had recognised R.J.H., O. and
the applicant as the perpetrators (who were masked). It further heard
two witnesses, T. and Å., who stated that they had seen, at a
distance, the applicant sitting in a car together with two other men
in the vicinity two hours before the robbery.
At the third hearing two witnesses were heard on behalf of the
defence. According to witness S. the applicant could not have been in
the locality of the robbery at the time when it took place.
In its judgment the City Court found inter alia that
"(h)aving regard to what has otherwise emerged in the case the
City Court does not find the statement of witness S., who has
been called as a witness only at this stage of the [proceedings],
plausible."
The applicant's appeal to the Court of Appeal (hovioikeus,
hovrätten) of Turku was rejected on 5 April 1990. The Court of Appeal
considered it "credible" (uskottava) that R.J.H., O. and the applicant
had been together from 3 to 20 July 1988 and that on 14 July 1988 they
had stolen a car and committed the robbery. The applicant's request
for a hearing was rejected by the Court, which stated inter alia:
"The case has been considered at three hearings [before the
City Court] and the parties have then had a possibility to
present their submissions. There is no need to hear the
witnesses proposed by O. and Kaunisto [inter alia S., R.H.,
T. and Å.] before the Court of Appeal, as their statements
do not affect the finding in the case..."
The applicant requested leave to appeal to the Supreme Court
(korkein oikeus, högsta domstolen), invoking inter alia Article 6
paras. 2 and 3 (d) of the Convention. He complained that no weight had
been given to the statement of witness S. and that, in contravention
of the presumption of innocence, the burden of proof had been resting
with him. He further requested a hearing.
Leave to appeal was refused by the Supreme Court on 17 July
1990.
Before the domestic courts the applicant was assisted
by his present representative before the Commission.
COMPLAINTS
The applicant complains of a violation of Article 6 para. 1,
in conjunction with paras. 2 and 3 (d) of the Convention. Although
the prosecution presented no evidence to the contrary, the City Court
did not regard the statement of witness S. as plausible, as it had not
been presented to the Court at an earlier stage of the trial. Thus,
he had no effective right to examine witness S. It is implied in the
presumption of innocence that the burden of proof rests with the
prosecution and that the accused may present evidence at any stage
during the trial. Finnish law does not provide that evidence must be
presented to a court at a specific hearing. Even if the accused
chooses to remain silent during the proceedings this fact should not
be interpreted to his detriment. In the present case, the applicant
did not even have a possibility to examine the witness at an earlier
stage, as the two preceding hearings were devoted to the reading out
of the pre-trial investigation record and the examination of the
witnesses of the prosecution. It would have been the Supreme Court's
duty under the Convention to see to it that the procedural error in
question be rectified.
THE LAW
The applicant complains that, as the City Court gave no weight
to the statement of witness S. having regard to the late stage of the
trial at which it was presented, he was denied the effective right to
present evidence in support of his innocence. He alleges a violation
of Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the
Convention, which read, insofar as they are relevant:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair .... hearing ...
by an independent and impartial tribunal established by
law...".
"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:
... 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 Commission first has to ascertain whether, and to what
extent, it is competent ratione temporis to deal with the
application. It recalls that in accordance with the generally
recognised rules of international law, the Convention only governs,
for each Contracting Party, facts subsequent to its entry into force
with regard to that Party (see e.g. No. 9453/81, Dec. 13.12.82,
D.R. 31 pp. 204, 208). In its case-law the Commission has held that,
where the facts consist of a series of legal proceedings, the date of
entry into force of the Convention in respect of the Contracting State
in question has the effect of dividing the period in two, the earlier
part escaping the Commission's jurisdiction ratione temporis, whereas
a complaint relating to the later part cannot be rejected on this
ground. On the other hand, where a court gives judgment after the
entry into force of the Convention, the Commission is competent to
ensure that the proceedings leading up to this judgment were in
conformity with the Convention, as the proceedings before a court are
embodied in its final decision which thus incorporates any defect by
which they may have been affected (cf. No. 8261/78, Dec. 11.10.79,
D.R. 18 p. 150, confirmed in No. 11306/84, Dec. 16.10.86, D.R. 50
p. 162).
(a) In the present case the proceedings before the courts of the
first and the second instance terminated with the judgment of the City
Court of Turku on 31 May 1989 and the judgment of the Court of Appeal
of Turku on 5 April 1990, respectively, i.e. prior to 10 May 1990,
which is the date of entry into force of the Convention with respect
to Finland. These proceedings are therefore, as such, outside the
competence of the Commission ratione temporis.
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
(b) The Commission has next considered the application insofar as
it may be regarded as pertaining to the Supreme Court's decision of
17 July 1990. The Commission observes that the applicant does not
complain about the proceedings before the Supreme Court as such, but
about the failure of that court to rectify the alleged procedural
error made by the City Court. In view of the fact that the
proceedings before the last-mentioned court terminated before the
entry into force of the Convention with regard to Finland, no
obligation for the Supreme Court to act in the manner required by the
applicant can be inferred from the Convention. Even assuming that
Article 6 (Art. 6) applies to the leave to appeal proceedings before the
Supreme Court the Commission therefore finds no appearance of any
violation of the provisions invoked by the applicant.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy