Application No. 17694/91
by Eero, Jorma and Pertti KORPPOO
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993 the following members being present:
Present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber,
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 November 1990
by Eero, Jorma and Pertti Korppoo against Finland and registered on 21
February 1991 under file No. 17694/91;
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 applicants, all Finnish citizens, are born in 1937, 1945 and
1941, respectively. The first and third applicants are sawmill
technicians and the second applicant is a manager. The first and
second applicants reside at Jäminkipohja and the third one at Ruovesi.
Before the Commission the applicants are represented by Mr. Seppo
Nieminen, a lawyer practising in Tampere.
The facts of the case, as submitted on behalf of the applicants,
may be summarised as follows.
Particular circumstances of the case
I.
In 1986 the applicants were ordered by the County Administrative
Court (lääninoikeus, länsstyrelsen) of Häme to pay residual taxes for
a number of preceding years.
The decisions were largely upheld by the Supreme Administrative
Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on
14 March 1988. The applicants' requests for oral hearings in order to
hear certain taxation officials were rejected, as was their request for
access to certain documents pertaining to the case and kept by the
Central Criminal Police (keskusrikospoliisi, centralkriminalpolisen).
Subsequent to the Supreme Administrative Court's decision the
applicants obtained further evidence allegedly showing that certain
assumed currency transfers of relevance to the imposition of residual
taxes had never taken place. The applicants requested the Supreme
Administrative Court to re-open part of the taxation proceedings,
referring to the new evidence.
On 4 June 1990 the applicants' requests were rejected.
II.
On 29 November 1985 the District Court (kihlakunnanoikeus,
häradsrätten) of Ruovesi convicted the applicants inter alia of
continued tax fraud (from 1977 to 1983) and continued violation of
currency regulations (from 1976 to 1982) and sentenced them to fines.
The applicants were acquitted inter alia on the charges of continued
gross tax fraud (from 1972 to 1976).
On 16 February 1987 the Court of Appeal (hovioikeus, hovrätten)
of Turku acquitted the first and third applicants on the above charges.
The second applicant was convicted of continued gross tax fraud from
1971 to 1975.
On 8 June 1987 the Supreme Court (korkein oikeus, högsta
domstolen) refused leave to appeal.
Subsequently the applicants were charged with gross embezzlement
before the District Court, which held hearings in the case on 6 January
and 16 March 1988.
The District Court heard, inter alia, G.K., a German citizen
resident in the Federal Republic of Germany, as a witness. He had been
summoned to appear before the District Court by the Chief of Police
(nimismies, länsmannen) of Mänttä, while staying in Finland allegedly
for reasons other than the pending trial against the applicants.
The applicants had objected to the District Court's intention to
hear him as a witness by granting him immunity in accordance with
Chapter 1, Section 11, para. 1 of the Penal Code (rikoslaki 39/1889,
strafflag 39/1889) and Chapter 17, Section 26a of the Code of Judicial
Procedure (Oikeudenkäymiskaari, Rättegångs Balk). They submitted that
G.K. had not been summoned in the manner prescribed in the law and that
he himself could have committed, or acted as an accomplice in, the
offence which the applicants had been charged with.
The applicants further referred to their acquittals in 1987 and
argued that they could not be tried twice for the same offence.
On 19 May 1988 the District Court convicted the applicants of
gross embezzlement and sentenced them to seven months' suspended
imprisonment.
The applicants appealed to the Court of Appeal.
Subsequent to the expiry of the time-limit for appealing the
applicants learnt about a statement of 14 July 1988 by K.K., a former
employee of G.K., regarding G.K.'s alleged unreliability as a witness
in the case. However, the applicants' request for permission to
supplement their appeal by hearing K.K. as witness or by allowing her
to submit a written statement to the Court of Appeal was rejected.
On 6 March 1990 the Court of Appeal upheld the District Court's
decision in all respects.
On 16 July 1990 the Supreme Court refused the applicants leave
to appeal.
Relevant domestic law
A person who voluntarily arrives from abroad on the basis of a
summons issued by a Finnish authority in order to testify in a criminal
case shall not, during the period he is staying in Finland for the
purpose of testifying or as long as he is legally prevented from
leaving the country, be charged with or arrested for a previous
offence, nor be detained on the basis of a previous sentence or as a
suspected accomplice in the offences at issue in the case in which he
is to testify (Chapter 1, Section 11, para. 1 of the Penal Code).
Anyone who is not or has not been a party to a case before a
court of law may be heard as a witness in that case (Chapter 17,
Section 18, para. 1 of the Code of Judicial Procedure).
A summons to be served on a witness residing outside Finland
shall be issued by the President of the competent court of the first
instance. The summons shall be sent to the competent authority in the
country where the witness is staying (Chapter 17, Section 26a).
The Supreme Court may grant leave to appeal only if this is of
importance, having regard to the application of the law in other
similar cases, or to the uniformity of that application, or if, because
of a procedural or other fault, there is a particular reason to annul
or nullify a decision, or there is another weighty reason warranting
the granting of leave to appeal (Chapter 30, Section 3, para. 1).
COMPLAINTS
1. The applicants complain that the court proceedings in the
taxation matter were unfair. Despite the applicants' acquittals of the
charges brought against them residual taxes of a punitive nature and
assessed in an arbitrary way were imposed on them. Moreover, the
applicants were not informed of certain documents relied upon by tax
officials and were thus unable to verify whether the documents were
authentic. The Supreme Administrative Court further wrongly refused
to hear certain tax officials as witnesses. In conclusion, the burden
of proof was wrongly placed on the applicants.
In the applicants' view the Commission is competent ratione
temporis to examine the whole of their complaint, as conclusive
evidence could, for reasons beyond their control, only be invoked by
them in their request for a re-opening of part of the taxation
proceedings. As the refusal to re-open the case was rendered
subsequent to the entry into force of the Convention with regard to
Finland, the Supreme Administrative Court was obliged to apply the
Convention. Moreover, part of the residual tax imposed has still not
been fully collected.
The applicants invoke Article 6 paras. 1, 2 and 3 (b) and (d) of
the Convention.
2. As regards the criminal proceedings ending in 1990 the applicants
complain that they were not given a fair trial, as they were convicted
on the basis of the statement by G.K., who had wrongly been granted
immunity despite the fact that he had not been properly summoned. In
any case, his statement was unreliable.
The applicants further allege to have been convicted in spite of
their acquittal on similar charges in 1987. The courts further refused
to obtain certain evidence regarding G.K.'s business activities in the
Federal Republic of Germany. The Court of Appeal of Turku finally
refused to allow them to supplement their appeal with a statement by
K.K.
The applicants invoke Article 6 paras. 1, 2 and 3 (d) of the
Convention.
THE LAW
1. The applicants complain of the alleged unfairness of the court
proceedings in the taxation matter. They invoke Article 6 paras. 1, 2
and 3 (b) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-d) of the Convention,
which read, insofar as they are relevant:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair ... hearing ...
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:
...
(b) to have adequate time and facilities for the preparation of
his defence;
...
(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 Commission first has to ascertain whether, and to what
extent, it is competent ratione temporis to deal with this complaint.
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 into 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 pp. 162-163 and, as regards
Finland, No. 17506/90, Dec. 7.4.93).
(i) The Commission recalls that the ordinary taxation proceedings
concerning the imposition of residual taxes on the applicants ended
with the Supreme Administrative Court's decision of 14 March 1988, i.e.
prior to 10 May 1990, which is the date of the entry into force of the
Convention with respect to Finland. These proceedings are therefore,
as such, outside the Commission's competence ratione temporis.
It follows that the complaint in this respect is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (art. 27-2).
(ii) It follows from the above-cited case-law that the re-opening
proceedings ending with the Supreme Administrative Court's decision of
4 June 1990 fall within the Commission's competence ratione temporis.
The Commission considers that the request for a re-opening of the
proceedings cannot have the effect of bringing the original proceedings
within the Commission's competence ratione temporis. Moreover, the
Commission recalls that neither the Convention nor any of its Protocols
contains an obligation for a Contracting State to allow someone the
opportunity to apply for a review of a decision having become res
iudicata. Nor does Article 6 (Art. 6) of the Convention apply to
proceedings for re-opening a trial given that someone who applies for
his case to be reopened and whose sentence has become final is not
someone "charged with a criminal offence" within the meaning of that
provision (No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171). This also
applies to a request for a re-opening of taxation proceedings.
It follows that the complaint in this respect is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (art. 27-2).
2. The applicants also complain of the alleged unfairness of the
criminal proceedings ending in 1990. They invoke the above-cited
Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the
Convention.
The Commission again has to ascertain whether, and to what
extent, it is competent ratione temporis to deal with this complaint.
(i) The Commission first observes that the proceedings up to and
including those before the Court of Appeal of Turku ended on 6 March
1990, that is before the entry into force of the Convention with regard
to Finland. These proceedings are, as such, outside the Commission's
competence ratione temporis.
It follows that the complaint in this respect is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
(ii) As to the subsequent proceedings the Commission observes that the
Supreme Court's examination did not extend to an examination of the
merits of the applicant's appeal (cf. No. 17925/90, Dec. 8.10.91;
e contrario the above-mentioned No. 17506/90, Dec. 7.4.93).
The Commission has already held that an examination under Finnish
law as to whether leave to appeal to the Supreme Court shall be granted
only amounts to an examination of the question whether or not the
conditions under Chapter 30, Section 3, para. 1 of the Code of Judicial
Procedure are at hand. It does not amount to an examination of the
merits of the appeal (T. and S.H. v. Finland, No. 19823/92, Dec.
9.2.93, cf. also Håkansson and Sturesson v. Sweden, No. 11855/85,
Dec. 15.7.87, D.R. 53 p. 190 at pp. 199-200). The proceedings before
the Supreme Court did not therefore involve a determination of the
criminal charges brought against the applicants within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the complaint in this respect is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (art. 27-2).
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy