FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27665/95
by Jouko and Pekka LANTTO
against Finland
The European Court of Human Rights (Fourth Section) sitting on 12 July 1999 as a Chamber composed of
Mr G. 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 12 June 1995 by Jouko and Pekka LANTTO against Finland and registered on 20 June 1995 under file no. 27665/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 9 February 1998 and the observations in reply submitted by the applicants on 6 April 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Finnish citizens, born in 1945 and 1952 and resident in Pello (Sweden) and Pello (Finland), respectively. The first applicant is a building engineer and the second applicant is a managing director.
They are represented before the Court by Mr Markku Fredman, 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 first applicant was the managing director of the limited liability company K (hereinafter “K”), and the second applicant the managing director of the limited liability company P (hereinafter “P”). They are brothers.
On 22, 23 and 30 May 1991, requests for a winding-up order were filed against P. On 27 May 1991, the second applicant, as the company’s managing director, was notified of the winding-up proceedings.
On 30 May 1991, the applicants signed a contract between the companies K and P. According to the contract, K was to repair a roof of a building owned by P. The contract was priced at 600,000 Finnish marks (FIM). On the same day, P paid the said sum to K in advance. The works were to be completed by 15 July 1991.
On 12 June 1991, the District Court (kihlakunnanoikeus, häradsrätten) of Ylitornio ordered the winding-up of P for insolvency.
On 27 June 1991, the liquidators of P’s assets decided to maintain the contract between K and P.
On 27 September 1991, the liquidators lodged a petition with the police. They suspected that the applicants had acted dishonestly as debtors by signing the contract despite being aware of the winding-up requests against P. They found that the correct contract price was FIM 200,000, at the most. Moreover, the work had not been completed and it had been impossible to recuperate the money that P had paid to K.
On 26 May 1992, the Chief of Rural Police and Public Prosecutor of Ylitornio, S, (hereinafter “prosecutor S”) charged the second applicant with, inter alia, the offence of debtor’s dishonesty. Furthermore, he charged the first applicant with aiding and abetting that crime. According to the indictment, the second applicant had known, on the basis of his existing or expected financial difficulties, that his act could be detrimental to the financial interests of his creditors. In these circumstances he had, without good cause, increased his financial obligations by entering into the contract of FIM 600,000 when the real value of the contract was FIM 200,000, at the most, and the whole contract price had been paid immediately after signing the contract. The prosecution relied on chapter 39, section 1 (4), of the Penal Code.
Chapter 39, section 1, of the Penal Code (rikoslaki, strafflagen, 769/1990) stipulates as follows:
“The Offence of Debtor’s Dishonesty. A debtor, who, on the basis of his existing or expected financial difficulties, is aware that that his act can be detrimental to the financial interests of his creditors,
1) destroys his property,
... (points 2 and 3 concern donations and transfers abroad),
or
4) increases, without good cause, his financial obligations,
thereby causing his insolvency or substantially aggravating it, shall be sentenced for the offence of debtor’s dishonesty ...”
(Unofficial translation from Finnish. NB. that the Finnish word in point 1) (hävittää) has also a less concrete meaning than “destroy”, namely “dispose of” or “dissipate”. Hereinafter the word “dispose of” is being used.)
The case was heard by the District Court of Ylitornio, which held six hearings.
Prosecutor S acted as prosecutor at the three first court hearings, namely on 26 May, 8 September and 1 December 1992. As he was to take up a post in a different rural police district, he was replaced by another prosecutor, R (hereinafter “prosecutor R”). The fourth court hearing was held on 9 February 1993.
On 6 April 1993, at the fifth court hearing, both applicants were present and counsel represented them. During this hearing, prosecutor R stated that the second applicant had, by entering into the contract in issue, not only increased P’s financial obligations but also disposed of its property. In this regard, he referred to the advance payment whereby P’s possessions had been transferred out of its creditors’ reach. He stated that in this respect he extended the charges. He referred to chapter 39, section 1, of the Penal Code without further specification as to the point in that section. Furthermore, he requested that a prohibition of engaging in business be imposed on the second applicant.
The second applicant, represented by counsel, replied that he had not disposed of P’s possessions. The parties declared that they were ready for the case to be decided. The District Court, however, adjourned the case to prepare its judgment and fixed the pronouncement thereof for 26 May 1993.
On 26 May 1993, the District Court held the last hearing. Both applicants were present and represented by counsel. During this hearing, the District Court heard a further witness called by the second applicant (previously, ten witnesses had been heard). Moreover, the District Court accepted further oral submissions from the parties. The defence submitted that the charges had been extended but that the extension had not been substantiated. The parties informed the court that they were ready for the case to be decided.
On 26 May 1993, the District Court pronounced its judgment. The District Court, when citing the prosecutor, noted that according to the indictment, which referred to the contract and the payment thereof, the company’s financial obligations had not only been increased but its possessions had also been disposed of. In this connection, the District Court referred to chapter 39, section 1(1), of the Penal Code.
The District Court found that the second applicant had, without good cause, increased P's financial obligations by entering into the contract with K and by paying the full contract price immediately on signature, although K had not intended to fulfil its part of the contract. Thereby, the second applicant had disposed of P’s property and substantially aggravated its insolvency. The District Court found that the first applicant had aided and abetted the crime, having accepted P's payment to K although aware of P’s financial difficulties.
The District Court found the second applicant guilty of, inter alia, the offence of debtor’s dishonesty in violation of chapter 39, sections 1(1) and 1(4), of the Penal Code. He was sentenced to one year and four months’ suspended imprisonment and was prohibited from exercising any business activity for a three-year period. The first applicant was found guilty of aiding and abetting that crime and sentenced to ten months' suspended imprisonment. Furthermore, the applicants were ordered to pay damages to P.
After the District Court’s judgment, the applicants instituted three sets of proceedings:
(i) appeal proceedings, i.e. appeal to the Court of Appeal (hovioikeus, hovrätten) and request for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen);
(ii) petition with the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern i statsrådet) concerning the bias of prosecutor S;
(iii) report of an offence against a lay judge, Y, on the basis of bias, with the Prosecuting Counsel (kanneviskaali, advokatfiskalen) at the Court of Appeal. In the course of these proceedings, the Prosecuting Counsel also initiated an investigation concerning an allegation that prosecutor R had addressed the District Court outside the court proceedings during its deliberations.
In the following, the above-mentioned proceedings are described separately, following chronological order within each set of proceedings.
(i)The appeal proceedings
Both applicants appealed, separately, to the Court of Appeal of Rovaniemi. They requested that the charges against them be dismissed. They objected to the alleged extension of the charges. Furthermore, the second applicant requested that the Court of Appeal hold a hearing with a view to re-examining the witnesses heard by the District Court. Also the first applicant submitted that the Court of Appeal should hold a hearing. The applicants based their appeals, inter alia, on the bias of the above-mentioned lay judge Y, who had participated in the decision-making. They stated that Y had been a member of the Board of Directors of a company that had been P’s creditor at the time of the District Court’s proceedings. Furthermore, they found that a second lay judge, V, who had participated in the proceedings only at an early stage, had been biased on the ground that he had also been a member of the Board of Directors of one of P’s creditor companies at the time of the court proceedings.
On 24 November 1993, the Court of Appeal held a hearing. The applicants, assisted by counsel, were present at the hearing. The Court of Appeal examined, in addition to the parties, two of the eleven witnesses heard by the District Court, two further witnesses as well as F, who had been the second applicant's counsel in certain matters. According to the Court of Appeal's minutes, all five were heard at the second applicant's request. There is no indication that the Court of Appeal would have refused to examine the other witnesses previously heard by the District Court or any other witnesses. The prohibition of engaging in business was withdrawn until the Court of Appeal gave its final judgment.
On 17 March 1993, the second applicant sent the Court of Appeal further written submissions. He noted, inter alia, that the Court of Appeal was the first impartial tribunal examining the case. Furthermore, he commented on certain evidence that had come to light during the oral hearing.
On 2 June 1994, the Court of Appeal delivered its judgment. Under the subheading “Procedure in the Court of Appeal”, it found that the lay judges Y and V had lacked impartiality. The Court of Appeal noted that the defence had not even contented that those judges had influenced the proceedings before the District Court or the contents of the minutes. For this reason, and in view of the fact that the applicants had lodged an appeal concerning all aspects of the case and requested an oral hearing, the Court of Appeal had itself held such a hearing without referring the case back to the District Court.
The Court of Appeal dismissed the applicants' objection regarding the alleged extension of the charges.
The Court of Appeal summed up F’s oral statements as follows. F had been instructed by the second applicant to investigate the possibilities of obtaining compensation for the damaged roof. After K’s insolvency had been discovered, the second applicant had informed F that the first applicant had also become personally insolvent. From this testimony, the Court of Appeal inferred that, at the time of signing the contract between P and K, the second applicant had been aware both of K’s insolvency and the first applicant’s personal insolvency.
As regards the merits, the Court of Appeal found that the second applicant had had a good reason for taking action to have the roof of P’s building repaired. Moreover, the contracted price had not been excessive and K’s failure to complete the works had partly been due to P’s liquidators’ failure to supervise them. It noted that the roof had originally been built by the first applicant and that, most obviously, the second applicant would have had the right to compensation from the former. The Court of Appeal found that the second applicant, when entering into the contract, had been aware that P was insolvent and that the contract and the payment could be detrimental to the creditors’ financial interests. Furthermore, the second applicant had, by entering into the contract, without good cause increased P’s financial obligations and by paying the contract price, disposed of its property, thereby substantially aggravating its insolvency. It found the second applicant guilty of, inter alia, the offence of debtor’s dishonesty, relying on chapter 39, section 1, points 1 and 4, of the Penal Code. It sentenced the second applicant to six months’ suspended imprisonment and the first applicant to four months’ suspended imprisonment. It also reduced the damages to be paid and quashed the prohibition of engaging in business imposed on the second applicant.
On 26 and 27 July 1997, the applicants, respectively, sought leave to appeal to the Supreme Court. They requested that the Supreme Court, either without or after an oral hearing, dismiss the charges against them or, alternatively, quash the Court of Appeal’s judgment and refer the case back to a court of a lower instance for renewed proceedings (alemman oikeuden uudelleen käsiteltäväksi). Their requests for leave to appeal concerned, inter alia, the bias of the lay judges, the bias of prosecutor S, the extension of the charges, as well as the evaluation of evidence before the Court of Appeal. According to the applicants, F had never said that the first applicant was insolvent. He had only said that the first applicant was unable to pay some FIM 700,000 in damages. Moreover, F had made no statement regarding K. The applicants did not complain that prosecutor R had addressed the District Court outside the hearings during its deliberations.
On 14 December 1994, the Supreme Court refused the applicants leave to appeal.
(ii)The petition with the Chancellor of Justice concerning the bias of the prosecutor
On 25 March 1994, the applicants lodged a petition concerning the bias of prosecutor S.
On 15 February 1995, the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, justitiekanslersadjointen i statsrådet) found that prosecutor S had been a member of the Board of Directors of a bank called T when the bank had granted loans to P. That bank had been an important creditor of P at the time when P went into liquidation. It merged with two other banks, and, subsequently, a bank L was founded. Prosecutor S had been a member of the Board of Governors of the latter bank at the time when the petition concerning offences around the liquidation of P had been lodged with the police. The offences had violated the interests of P’s creditors. Due to the merger, bank L had succeeded bank T as P's creditor. The Deputy Chancellor of Justice found that in these circumstances prosecutor S’s impartiality had been open to doubt and that, therefore, he should neither have considered whether to press charges against the applicants nor have acted as prosecutor in the case. The Deputy Chancellor reprimanded S but found no grounds for considering that he had committed an offence in office, given the lack of explicit provisions in domestic law governing the impartiality of public prosecutors.
(iii)The petition with the Prosecuting Counsel concerning the bias of a lay judge
On 4 March 1994, the applicants lodged a report of an offence with the Prosecuting Counsel of the Court of Appeal concerning an offence in office by lay judge Y, who had participated in the decision-making of the District Court’s judgment (see also “ (i) The appeal proceedings”). The lay judge had been a member of the Board of Directors of a company that had been P’s creditor at the time of the District Court’s proceedings. The applicants considered that Y had committed an offence in office by not stepping down from the bench.
The lay judge stated in his written submission, inter alia, that prosecutor R had during the last hearing in the District Court requested “more severe sentences and a lengthy prohibition of the second applicant’s business activities”. On the last point, prosecutor R had referred to the winding-up of another company in Pello in which the second applicant had been involved. According to Y, the prosecutor’s request had resulted in an amendment to the draft judgment, which the presiding judge had distributed to the lay judges.
On 20 April 1994, the Prosecuting Counsel of the Court of Appeal requested that a pre-trial investigation be opened regarding Y's suspected partiality and prosecutor R’s above-mentioned request to the District Court. The Prosecuting Counsel requested that the police investigate the circumstances in which prosecutor R had made this request.
In the pre-trial investigation Y, on 15 June 1994, acknowledged that he should not have taken part in the applicants’ case. His participation had been due to his lack of knowledge but had not affected the outcome of the case. According to the recollection of the Presiding Judge of the District Court, also heard in the pre-trial investigation, prosecutor R had requested the prohibition of engaging in business “at the last or last but one hearing”. The Presiding Judge, furthermore, stated that the parties’ oral submissions at the hearings had been transcribed verbatim.
The pre-trial investigation record was completed on 20 June 1994. A copy thereof, which the applicants submitted to the European Commission of the Human Rights as an annex to their application, was certified on 23 December 1994.
B.Relevant domestic law and practice
For chapter 39, section 1, of the Penal Code, see A. above.
According to the Code of Procedure (oikeudenkäymiskaari, rättegångsbalken), as it stood, the District Court was composed of a presiding professional judge and three or four lay judges.
Courts of appeal are competent to examine both factual and legal issues.
The Supreme Court’s precedent of 12 June 1984 (KKO 1984-II-110) concerned a case in which the Court of Appeal had found that a lay judge in the District Court had been biased. Therefore, the Court of Appeal had referred the case back to the District Court. In the Supreme Court’s view, since there was no indication that the biased lay judge would have influenced the proceedings and since all the defendants had by appeal brought the case in its entirety before the Court of Appeal, the latter should not have refrained from examining the case itself.
The Supreme Court found in another precedent of 6 November 1995 (KKO 1995:185) that the District Court had not met the requirements of impartiality as guaranteed by Article 6 of the Convention. Therefore, and in order to fulfil the requirements of a fair trial, the case was to be referred back for a retrial to the relevant court of first instance.
COMPLAINTS
1.The applicants complain that their trial, as a whole, was not fair within the meaning of Article 6 §§ 1 and 3 of the Convention.
The applicants argue that prosecutor R addressed the District Court outside its hearings. They find that this appears from lay judge Y's statements in the pre-trial investigation and from the manner in which the District Court recorded the parties' written and oral submissions. Prosecutor R’s submissions apparently concerned the length of the sentences sought and the length of the proposed prohibition of engaging in business imposed on the second applicant.
Furthermore, the applicants maintain that prosecutor S was partial because of his membership of the governing body of P’s creditor bank. In this capacity, he was personally responsible for the loans granted to P and had a personal interest in obtaining the applicants’ conviction of the offence of debtor’s dishonesty.
The applicants point out that two of the lay judges of the District Court were partial by reason of their membership of the Boards of Directors of P’s creditors. The lay judges imposed on the second applicant a sentence that was more severe than that proposed by the Presiding Judge. The oral hearing before the Court of Appeal did not rectify the District Court's partiality. Instead, the case should have been referred back to the District Court for a fresh examination by a new composition of judges.
The applicants maintain that they were not informed promptly and in detail of the nature and cause of all accusations against them and that they were thus unable to defend themselves properly. They refer particularly to the extension of the charges at a late stage of the proceedings and maintain, furthermore, that the extension remained vague.
The applicants further submit that the Court of Appeal failed to take into account the submissions of the defence and differed with the applicants on the assessment of the facts without providing any reasons. The Court of Appeal's judgment also contained an incorrect summary of F's oral statements.
2.The applicants complain that, due to the Court of Appeal's failure to refer the case back to the District Court and the Supreme Court's refusal of to grant them leave to appeal, the case was examined only by one independent and impartial tribunal. Therefore, their right to have their respective convictions and sentences reviewed by a higher tribunal within the meaning of Article 2 of the Protocol No. 7 was infringed.
PROCEDURE
The application was introduced before the European Commission of Human Rights on 12 June 1995 and registered on 20 June 1995.
On 23 October 1997, the Commission decided to communicate the applicants’ complaints concerning the partiality of the District Court and the alleged unfairness of the proceedings to the respondent Government.
The Government’s written observations were submitted on 9 February 1998, after an extension of the time limit fixed for that purpose. The applicants replied on 6 April 1998.
On 10 March 1998, the Commission granted the applicants 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
1.Concerning Article 6 §§ 1 and 3 of the Convention
The applicants submit that prosecutor R addressed the District Court outside its hearings. Furthermore, they complain that prosecutor S was partial. As regards the bias of two lay judges, they contend that the proceedings before the Court of Appeal did not rectify the District Court’s partiality. Furthermore, they maintain that they were not informed promptly and in detail of the nature and the cause of all accusations against them and that, therefore, they were unable to defend themselves properly. Lastly, they find that the Court of Appeal assessed evidence incorrectly.
Article 6 of the Convention in its relevant parts reads as follows:
“1. In the determination of … of any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law…
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
…”
(a)The Government note that the applicants did not argue, when requesting leave to appeal to the Supreme Court, that the prosecution had allegedly addressed the District Court outside its hearings. Therefore, they maintain that the applicants did not exhaust domestic remedies for this part of their application.
The applicants submit that this part of the application concerns a detail of which it is almost impossible for the applicants to produce evidence. Furthermore, the subject-matter of a request for leave to appeal is different from a human rights application. Moreover, it should be noted that the Supreme Court gave its judgment on 14 December 1994, whereas the pre-trial protocol was certified on 23 December 1994. Lastly, they point out that the Government has not relied on non-exhaustion of domestic remedies regarding their other complaints.
The Court recalls that Article 35 of the Convention requires that the complaints intended to be made subsequently before the Court 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 Akdivar and Others v. Turkey judgment of 16 December 1996, Reports of Judgments and Decisions 1996-IV, p.1210, § 66)
The Court notes that the applicants made use of the regular remedies (an appeal and a request for leave to appeal). They, however, failed to raise the allegation that prosecutor R had addressed the District Court outside its hearings in their request for leave to appeal with the Supreme Court. They have, therefore, not made this complaint in substance to the relevant domestic body.
It follows that the applicants have not exhausted domestic remedies in accordance with Article 35 § 1 (former Article 26) of the Convention. This part of the application must, therefore, be rejected under Article 35 § 4 of the Convention.
(b)The applicants complain, under Article 6 of the Convention, that prosecutor S was partial. The Court, however, notes that the requirement imposed by Article 6 of the Convention does not apply directly to prosecutors.
Even assuming that the lack of impartiality of a prosecutor might indirectly affect the fairness of the proceedings under Article 6 of the Convention, the Court finds that this part of the application is inadmissible for the following reasons.
The Court notes that prosecutor S was replaced by another prosecutor during the course of the proceedings before the District Court. The Court finds, taking into account the length and nature of prosecutor S’s participation in the proceedings and the limited link he had with the parties, that his participation in the proceedings did not render them unfair within the meaning of Article 6 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(c)Regarding the substance of the complaints under Article 6 of the Convention, the Government maintain that the defects concerning the conduct of the court of first instance were remedied by the subsequent procedure before the appeal court. The applicants lodged an appeal with the Court of Appeal, arguing, inter alia, that evidence should be evaluated in a different way and that the law had been misinterpreted. As the Court of Appeal considered that two lay judges lacking impartiality had participated in the proceedings before the District Court, it had two alternative ways of proceeding: either to refer the case back to the District Court, or to review it on all its aspects after an oral hearing. The Court of Appeal chose the second alternative. The Court held that there were no obstacles to reviewing the case in its entirety, including both facts and law. Furthermore, the applicants had not even requested that the case be referred back to the District Court. Instead, they had requested an oral hearing before the Court of Appeal, which heard all the witnesses named by the applicants. In the Government’s view, the Court of Appeal remedied the defect in the composition of the District Court.
Regarding the complaint concerning the indictment, the Government note that prosecutor S had charged the second applicant with the offence of debtor’s dishonesty. Later, prosecutor R made the charges more precise, arguing that due to the contract, the company’s contractual obligations had not only increased but also its possessions had been disposed of to the detriment of its creditors. The original indictment and the facts presented indicated that, by the disposal of possessions, prosecutor R referred to the payment. It was not a matter of extending the charges but of adjusting them. That adjustment merely gave a more accurate evaluation of the evidence and assessment of the facts in order to determine under which point(s) the offence of debtor’s dishonesty fell within chapter 39, section 1, of the Penal Code. Furthermore, the applicants were present at the hearing before the District Court when the prosecutor adjusted the charges. Moreover, the legal counsel of the second applicant immediately responded to the said adjustment. In addition, the applicants had the opportunity to comment upon the adjusted charges at the following and final hearing of the District Court.
The applicants emphasise that the criminal proceedings before the court of first instance must provide the guarantees of a fair trial. Since the proceedings before the District Court were not fair, the Court of Appeal should have quashed its judgment in its entirety and referred the case back for a retrial. The proceedings before the Court of Appeal did not cure this defect. According to recent case-law (precedent 1995:185 of the Supreme Court), a case should be referred back to the court of first instance where that court has not been impartial.
The applicants maintain that an indictment shall be detailed and the facts and legal grounds shall be explained in such a manner that the defendant is able to prepare his defence. In the instant case, the charge was extended in a very vague manner to cover also the disposal of possessions. The Court of Appeal found that the second applicant was guilty of disposal of possessions. Therefore, the question was not one of an adjustment of the charges but of an extension thereof. Furthermore, the prosecutor himself had considered the change to be an extension of the charge. The applicants were informed of the extension only at the very last phase of the proceedings. They did not have enough time and facilities to prepare their defence in this regard. The applicants point out that the Government have not answered all their complaints.
The Court recalls that when determining whether Article 6 of the Convention has been complied with, it must take into account the proceedings as a whole. Furthermore, the Court recalls that the guarantees in Article 6 § 3 are specific aspects of the right to a fair trial set forth in general in Article 6 § 1 (see, inter alia, the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 796, § 5, and the Foucher v. France judgment of 18 March 1997, Reports 1997-II, p. 464, § 30). Therefore, the Court finds that the applicants’ complaints should be examined from the point of view of Article 6 § 1 and Article 6 § 3 (a) and (b), taken these three provisions together.
Regarding the composition of the District Court, the Court notes that it was open to the applicants to appeal against the District Court’s judgment, which they in fact did. On the basis of the applicants’ appeals, the Court of Appeal found that two of the lay judges had lacked impartiality.
The Court recalls that the possibility exists that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention provisions (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 19, § 33, and the De Haan v. the Netherlands judgment of 26 August 1997, Reports 1997‑IV, p. 1393, § 54).
The Court notes that it is not in dispute that the proceedings in the District Court did not fulfil the requirements of a fair trial as regards the impartiality of the court. In these circumstances, the Court must ascertain whether the Court of Appeal examined the case in its entirety as well as the other particular circumstances of the case.
The Court observes that the applicants requested the Court of Appeal to hold an oral hearing. They did not submit alternative requests in this respect although they themselves appealed, inter alia, on the basis of bias. The Court of Appeal, when deciding upon its procedure, took into account the applicants’ express request concerning a hearing before that court. Furthermore, the Court of Appeal took into account the fact that the applicants had appealed against the District Court’s judgment in its entirety. In these circumstances, the Court of Appeal decided that it could hold a hearing itself, without having to refer the case back to the District Court.
Regarding the oral hearing before the Court of Appeal, the Court is aware that the Court of Appeal did not hear evidence from all the witnesses heard by the District Court. The Court notes, however, that the Court of Appeal heard the evidence from all those witnesses that the applicants had summoned to that hearing. The applicants did not at any phase before the Court of Appeal object to the oral hearing before that court.
The Court considers that a distinction can be made between the examination of a case in its entirety on the one hand, and the hearing of witnesses on the other. The parties had the opportunity to summon fewer witnesses, as well as new witnesses, before the Court of Appeal. The fact that the applicants could, in fact, summon witnesses that had not been heard by the District Court, is also an indication that the Court of Appeal examined the case in its entirety. Furthermore, it cannot be overlooked that the opportunity of the Court of Appeal to summon witnesses ex officio was a delicate question, taking into account the requirement of the impartiality of the court vis-à-vis the parties and the fact that also the prosecutor could reconsider the need to call witnesses. The Court considers that, for the purposes of Article 6 of the Convention, it cannot be required that a rehearing, whether held before the original court of first instance or on appeal, should be a reproduction of the original proceedings. The crucial element in this regard is whether or not the case is heard concerning both facts and law in its entirety.
The Court finds it established that the Court of Appeal examined the case anew in its entirety concerning both facts and law. Taking also into account the reasons that the Court of Appeal gave for its procedure, the Court finds that the Court of Appeal remedied the defects arising from the composition of the District Court.
As regards the issues raised by the applicants under Article 6 § 3 (a) and (b), the Court observes that these provisions point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the alleged offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (see the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 36‑37, § 79). Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed. Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him (see mutatis mutandis, the Kamasinski judgment cited above). As regards the complaint under Article 6 § 3 (b) of the Convention, the Court considers that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (see the Pélissier and Sassi v. France judgment of 25 March 1999, to be published in Reports, § 51).
The Court notes that the second applicant was throughout the proceedings accused of the offence of debtor’s dishonesty under chapter 39, section 1, of the Penal Code. The first applicant was accused of having aided and abetted that crime. Later, they were convicted of these charges. Furthermore, the Court observes that the prosecutor described in the initial indictment that the second applicant had entered into the contract and that the whole contract price had been paid. The Court finds that the description of the factual situation did not change during the proceedings although the emphasis given to those facts slightly changed.
The Court notes that chapter 39, section 1, of the Penal Code, which concerns solely the offence of debtor’s dishonesty, can be divided into three separate, although interrelated, parts. Firstly, it concerns the knowledge the person has of his current financial situation and of the possible consequences his acts can have on the financial interests of his creditors. Secondly, it concerns different ways in which a person can reduce the value of his possessions. Thirdly, it concerns the impact his acts have on his insolvency. The Court notes that the amendment to the charge was made within the second part of the provision in question. The change did not aggravate the charge or alter its legal characterisation. Furthermore, the Court notes that the Court of Appeal found that the second applicant had both disposed of his property and increased, without good cause, his financial obligations. The Court of Appeal thus found the applicant guilty of the offence of debtor’s dishonesty on the basis of the original indictment, namely, chapter 39, section 1 (4), of the Penal Code.
Regarding the question of whether the applicants had adequate time and facilities for the preparation of their defence, the Court refers, firstly, to the above conclusions. Furthermore, when assessing the applicants’ time and facilities to defend themselves in a manner that would correspond to the charge which emphasised the original facts differently than the original indictment, the Court observes that the applicants and their counsel were present when the prosecutor made the modification. Despite the modification, they stated to the court that they were ready for the case to be decided. Furthermore, they were present at the next hearing where they still had the opportunity to comment on the modification. Also at this hearing they informed the court that they were ready for the case to be decided. Finally, the Court notes that the applicants had an opportunity to reply to the adjusted charges also before the Court of Appeal.
In the circumstances of the present case, the Court finds that the applicants were sufficiently informed of the nature and cause of the accusation against them for the purposes of Article 6 § 3 (a) of the Convention. Furthermore, the Court finds that an examination of this complaint does not disclose any appearance of a violation of Article 6 § 3 (b) of the Convention.
Regarding the complaints concerning the evaluation of evidence and the judicial decision made by the domestic courts, the Court recalls that it is not competent to deal with complaints alleging errors of fact or law on the part of domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. no. 7987/77, dec. 13.12.1979, D.R. 18, pp. 31, 45; no. 12505/86, dec. 11.10.1988, D.R., pp. 106, 110). Moreover, it is not within the Court’s province to substitute its own assessment of the facts for that of the domestic courts, and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety were fair (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34). In the present case, the examination of the application does not disclose any indication that the proceedings in the applicants’ case were unfair in this respect.
An examination by the Court of these complaints does not therefore, when considering the proceedings as a whole, disclose any appearance of a violation of the applicants’ rights set out in Article 6 § 1 and 6 § 3 (a) and (b) of the Convention, taking these three provisions together.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.Concerning Article 2 of Protocol No. 7 to the Convention
The applicants complain that because the Court of Appeal did not refer the case back to the District Court and the Supreme Court refused them leave to appeal, the case was examined by only one independent and impartial tribunal. They argue that their right to have their respective conviction and sentence reviewed by a higher tribunal within the meaning of Article 2 of Protocol No. 7 to the Convention was, therefore, infringed.
Article 2 of Protocol No. 7 to the Convention reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
The applicants point out that the Government have not in their observations commented on the complaint under Article 2 of Protocol No. 7 to the Convention.
The Court observes that the criminal case against the applicants was examined by the District Court and the Court of Appeal and, thereafter, in leave to appeal proceedings in the Supreme Court. As regards the two first court proceedings, the Court notes that the aim of the appeal is to allow an examination by a higher court not only of the substance of the case but also of possible procedural errors made by the lower court. In the instant case, the applicants exercised their right of appeal, arguing, inter alia, that the District Court had been partial. In this regard, their appeal was not rejected. Furthermore, the Court of Appeal also examined their appeal as regards the conviction and sentence. It therefore appears that the applicants had their case reviewed by two tribunals in conformity with Article 2 of Protocol No. 7 to the Convention. However, even assuming that, in the particular circumstances of the instant case, the Court of Appeal should be regarded as the tribunal of first instance for the purposes of Article 2 of Protocol No. 7 to the Convention, the Court finds that this part of the application is manifestly ill-founded for the following reasons.
The Court notes that different rules govern the review by a higher tribunal in the various member States of the Council of Europe (see application no. 18066/91, dec. 6.4.1994, D.R. 77-A, p. 37). In some member States, like Finland, a person wishing to appeal in a criminal case to the highest tribunal must apply for leave to appeal. The Court considers that the procedure on the right to apply to the Supreme Court in the present case is in itself to be regarded as a review within the meaning of Article 2 of Protocol No. 7.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy