FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27752/95
by Kaija KUOPILA
against Finland
The European Court of Human Rights (Fourth Section) sitting on 1 June 1999 as a Chamber composed of
MrG. Ress, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrI. Cabral Barreto,
MrsN. Vajić, Judges,
withMrV. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 November 1994 by Kaija KUOPILA against Finland and registered on 29 June 1995 under file no. 27752/95;
Having regard to the observations submitted by the respondent Government on 8 January 1998 and the observations in reply submitted by the applicant on 30 March 1998;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish national, born in 1927 and living in Uusikaupunki.
She is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. Initially she was represented by Mr Matti Nurmela, also a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
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 by the end of November. A statement of 1955, according to which the painting was an authentic work of Helene Schjerfbeck, was attached on the back of the painting.
On 9 April 1991, the original owner of the painting reported to the police that the applicant had refused to return the painting despite the expiry of the sales commission and his repeated requests. He considered that a crime had been committed.
Subsequently, a police investigation was initiated. The police questioned the applicant and the original owner of the painting. As it appeared that the applicant had sold the painting to a third person, the police questioned him, too. Furthermore, the painting was seized.
The applicant was charged with aggravated fraud and aggravated embezzlement, committed concurrently, contrary to chapter 28, section 5 (1), and chapter 36, section 2 (1), of the Criminal Code (rikoslaki, strafflag).
According to the indictment, the applicant had on 14 April 1991 stolen the painting, worth at least 250,000 Finnish marks (FIM), entrusted to her, by selling it to a third person, deceitfully as her own, for FIM 250,000. Her intention had been to obtain an unjust pecuniary advantage, and the action had caused financial loss to the buyer. The Prosecutor considered that both the embezzlement and the fraud were aggravated in particular since the property in question was very valuable and since considerable benefit had been sought.
On 26 September 1991 the court proceedings in the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää commenced. The Court ordered that the painting remain seized. The Court heard the applicant, the original owner and the buyer. The applicant pleaded not guilty to the above-mentioned charges, claiming that there was only a dispute over the ownership and payment of the painting. Furthermore, three witnesses were questioned relating to the circumstances of the sales commission and the applicant's business activities. Later, the applicant was accused of four additional counts of embezzlement and fraud.
On 20 February 1992, the applicant, who now had doubts as to whether the painting was authentic, requested the Court to authorise and order the examination of its authenticity. The District Court ruled, as far as relevant, as follows:
(Translation)
"... the examination of the authenticity of the painting at this stage does not concern [the applicant's] interests and rights and thus the request concerning such an interlocutory decision cannot be complied with. ..."
On 7 May 1992, the District Court convicted the applicant on all five charges brought against her, i.e. also on the charge of aggravated embezzlement and aggravated fraud now at issue. The Court sentenced her to imprisonment totalling two years and six months. The seizure of the painting was lifted, and the Court ordered that it be returned to the estate of the buyer.
On 5 June 1992, the applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki requesting that she be acquitted or her sentence be reduced. She submitted that the first charge had led to the other four charges. She stated that she would attempt to obtain new evidence concerning the authenticity of the painting and requested that an oral hearing be held or that the case be returned to the District Court in case such new evidence appeared.
On 13 July 1992, the applicant, represented by counsel, requested the Prosecutor to order an investigation into the authenticity of the painting. Following her request an investigation was initiated. The police obtained from the National Gallery of Finland a statement, dated 15 September 1992, according to which the painting was not authentic. On 21 October 1992, the police questioned the original owner of the painting. The applicant was not questioned.
On 2 August 1993, the Prosecutor submitted the supplementary police report, including the National Gallery’s statement, to the Court of Appeal. In the accompanying letter the Prosecutor asked the Court of Appeal to take the report into account by virtue of chapter 26, section 5, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk). The Prosecutor found that, from the angle of criminal law, the non-authenticity of the painting did not essentially affect the assessment of the case. He stated further that the police had made attempts in order to question the applicant but they had not been able to reach her. The Prosecutor did not specify these attempts any further.
On 14 September 1993, the Court of Appeal upheld the judgment of the District Court without inviting the applicant to submit comments or holding an oral hearing. Furthermore, neither the original owner nor the estate of the buyer were heard. 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 Court of Appeal approved the District Court’s reasoning without making any changes to it and, consequently, in its own reasoning it did not in any way mention the outcome of the supplementary police report or the National Gallery’s statement.
The applicant found out about the above-mentioned National Gallery’s statement in the autumn of 1993. Following her request, the Prosecutor sent it to her on 12 November 1993.
On 14 November 1993, the applicant, assisted by counsel, requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). She based her request, firstly, on the jurisprudential relevance of the issues in her case. Secondly, she stated that weighty reasons for granting her a leave to appeal existed. She requested that she be acquitted or the sentence be reduced. Alternatively, she requested that the case be referred back to the Court of Appeal or the District 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. She referred to the concept of a fair trial guaranteed by human rights conventions.
In his comments to the Supreme Court the Prosecutor stated that the authenticity of the painting was not relevant for the assessment of the criminal case in issue.
On 24 May 1994, the Supreme Court on 24 May 1994 refused the applicant leave to appeal.
On 14 April 1995, the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the Prosecutor's failure to communicate to her the police report concerning the authenticity of the painting.
On 22 July 1996, the Deputy Parliamentary Ombudsman (apulaisoikeusasiamies, biträdande justitieombudsman) found that the Prosecutor, by failing to communicate the supplementary police report to the applicant or her representative, had shown negligence in respect of his official duties. The Deputy Parliamentary Ombudsman took into account that the supplementary police investigation concerned the value of the painting, this being an important element when considering the nature of the offence and the punishment thereupon. As a result, the Deputy Ombudsman addressed a critical remark (huomautus, anmärkning) to the Prosecutor.
B.Relevant domestic law
According to chapter 26, section 5, of the Code of Judicial Procedure, the court of appeal may take into account a written pleading or other documents submitted to it after a time-limit has expired if special grounds thereto exist. If the pleading or document can affect the outcome of the case the court of appeal is obliged, under section 6, to request the parties to give written comments, if such a measure is not considered to be manifestly unnecessary.
COMPLAINT
The applicant complains that she was not afforded a fair trial due to the fact that vital evidence, in this case the statement from the National Gallery of Finland, was withheld from her. She maintains that the proceedings in the Court of Appeal were not in conformity with the adversarial principle and that she had not had at her disposal all the evidence the prosecution had had. She alleges that the statement in issue could have influenced the outcome of the case, and that she was wrongly convicted. She invokes Article 6 of the Convention.
PROCEDURE
The application was introduced before the European Commission of Human Rights on 23 November 1994 and registered on 29 June 1995.
On 23 October 1997, the Commission decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 8 January 1998. The applicant replied on 30 March 1998, after an extension of the time-limit fixed for that purpose.
On 10 March 1998, the Commission granted the applicant legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains that, since the outcome of the supplementary police investigation was not communicated to her, the procedure in the Court of Appeal was not in conformity with the adversarial principle and gave rise to a violation of her right to a fair hearing. She was deprived of the opportunity to submit comments on the fresh statement relating to the authenticity of the painting. Furthermore, she maintains that there was a lack of equal standing between her and the prosecution. The applicant invokes Article 6 of the Convention, which provides, in so far as relevant:
“1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by (a) ... tribunal ....
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;
...”
1.Concerning the question of exhausting domestic remedies
The Government argue that the applicant has failed to exhaust remedies referred to in Article 26 (Article 35 § 1 since the entry into force of Protocol No. 11) of the Convention.
The Government maintain, firstly, that the applicant did not appeal against the District Court’s interlocutory judgment on the refusal to order an examination of the authenticity of the painting. The Government note that the applicant could have argued before the Court of Appeal that the authenticity of the painting concerned her interests and requested an examination as to the authenticity. The applicant did not, however, appeal against the interlocutory judgment, nor did she in the domestic proceedings explain or specify what legal consequences the non-authenticity of the painting could have produced in her case. Furthermore, the Government observe that the applicant restricted her request for leave to appeal to the jurisprudential relevance of the issues in her case and to the so-called other significant reasons but she did not base her request on a procedural error.
The applicant maintains that her application does not concern the District Court’s interlocutory judgment decision on the refusal to order an examination as regards the authenticity of the painting. The focus of her complaint is that, although such an examination was later carried out, the result of it was not communicated to her. The applicant maintains that in her request for leave to appeal she did specifically raise the question of the non-communication of the police report.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34).
The Court recalls, firstly, that the question now at issue is the non-communication of the supplementary police report to the applicant while the case was pending before the Court of Appeal. The supplementary police investigation had not even started when the case was pending before the City Court. The Court notes that the City Court’s interlocutory judgment on the refusal to order such an examination and the eventual supplementary police report are two separate issues. It is true that the applicant approved the interlocutory judgment, at least in so far that she did not appeal against it. However, this does not mean that she had waived her right to be informed of a supplementary investigation should it later, regardless of the interlocutory judgment, be carried out.
The Court notes, secondly, that the applicant raised the question of the non-communication in her request for leave to appeal by referring to the concept of a fair trial and to human rights. The Court considers that these references are sufficient for the finding that the applicant has raised equivalent arguments before the national courts as now before the Court.
In the light of above the Court concludes that the application cannot be rejected for failure to exhaust domestic remedies.
2.Concerning the substance of the case
The Government maintain that the leave-to-appeal proceedings before the Supreme Court are not covered by Article 6 of the Convention. Furthermore, the Government maintain that apparently the Court of Appeal considered the National Gallery’s statement irrelevant to the resolution of the case pending before it and that, therefore, the communication of the statement to the applicant was unnecessary. In the Government’s view the question of whether the painting was genuine or not was of no significance to the outcome of the domestic proceedings. The Government point out that the domestic courts have the power to freely evaluate the relevance and significance of documents sent to them. The Government maintain that there has been no violation of the applicant’s right to a fair hearing.
The applicant maintains that due to the non-communication of the supplementary police report she did not have an opportunity to rely on the fresh National Gallery’s statement that affected the appraisal of the painting and thereby also the assessment of the relevant criminal case. She points out that the prosecution had been aware of the new report. In her opinion it is not decisive whether the Court of Appeal had considered the new report irrelevant since, in any case, she should have been given an opportunity to demonstrate its importance to the court.
The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy