FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50230/99
by Ari LAUKKANEN and Jukka MANNINEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 28 May 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 15 February 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ari Laukkanen, and Mr Jukka Manninen, are Finnish nationals, who were born in 1953 and 1955 respectively. They were represented before the Court by Mr Jukka Juntunen, a lawyer practising in Hämeenlinna. The respondent Government were represented by Mr Holger Rotkirch, Agent, Director General for Legal Affairs, and Mr Arto Kosonen, Agent, both from the Finnish Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were charged before the District Court (käräjäoikeus, tingsrätt) of Lahti; the first applicant with unauthorised use of a motor vehicle and driving without a licence and the second applicant with unauthorised use of a motor vehicle, among other offences. The applicants were represented before the District Court by legal counsel.
At the hearing before the District Court, on 10 September 1997, the public prosecutor called an eyewitness, N., a police officer. He had recognised the applicants and had seen them enter a car that was later reported stolen. When the witness gave evidence it appeared that there might have been other police officers in the area. The witness refused to answer some questions about his whereabouts when observing the applicants and also declined to confirm whether there had been other officers in the area, since he had been assigned to another operation not related to the applicants’ actions. The witness testified that he had recognised the applicants since he had met them before during pre-trial investigations. He had seen the first applicant enter the car by opening the door from the driver’s side. The second applicant had arrived a little later and had entered the car, and the car had left. The witness had seen its registration plate and remembered that it had contained the same digit three times.
The applicants denied the charges against them, explaining they did not know anything about the incident they were accused of. They also stated to the District Court that they wished to be informed of the identity of the police officers witness N. had mentioned in order to be able to call them as witnesses.
The District Court convicted the applicants on 10 September 1997 of unauthorised use of a motor vehicle, among other offences, and sentenced the first applicant to sixty days’ and the second applicant to six months’ imprisonment. Insofar as the judgment concerned the offences referred to above, the court based itself on the testimony of the eyewitness. There was no other evidence.
The applicants appealed to the Court of Appeal (hovioikeus, hovrätt) of Kouvola, arguing that they should not have been convicted on the basis of the testimony of one eyewitness, since it would have been possible to hear the police officers who had been in the area at the same time. The applicants demanded a chance to hear those police officers as witnesses, requesting an oral hearing to be held before the Court of Appeal or that the case be referred back to the District Court for a re-hearing. They stressed that the names of those police officers had not been known until the public prosecutor gave his answer to the applicants’ appeal to the Court of Appeal. After the hearing at the District Court the public prosecutor had established that the two police officers had been in the area but had not observed the incident.
The public prosecutor submitted his observations on the applicants’ appeal to the Court of Appeal on 16 January 1998. In his observations he revealed the identity of the proposed witnesses in question. He objected to the hearing of those witnesses and to the applicants’ request to refer the case back to the District Court. He stated that he had discussed the case with both officers who had told him that they had seen the applicants in the area but had not made any observations concerning the unauthorised use of the vehicle. The public prosecutor stated that the applicants had been able to question witness N., whereas the two other officers could not be considered as witnesses who would give evidence on the applicants’ behalf within the meaning of Article 6 § 3(d) of the Convention.
The applicants were provided with an opportunity to submit written comments on the prosecutor’s observations. The first applicant asserted, inter alia, that he must be afforded a right to obtain answers from N. to the questions he had put to him, and a right to hear the above-mentioned two police officers as witnesses. The second applicant argued that the public prosecutor’s statement about his conversations with the police officers in question was not comparable to their being heard as witnesses before a court. He noted that the applicants could have had other questions to put to them than those put by the prosecutor.
On 29 September 1998 the Court of Appeal upheld the District Court’s judgment, rejecting the applicants’ request for an oral hearing and the request to refer the case back to the District Court. It found, in accordance with the Code of Judicial Procedure Act (Chapter 25, section 14 subsection 3), that the applicants had failed to state what they intended to prove by the witness evidence proposed. It also recalled, according to the same Act (Chapter 17, section 7), that a court must not allow irrelevant evidence to be presented. The Court of Appeal also rejected the request to hear N. again as, in its view, additional questions would not bring any further clarification to the case.
On 1 February 1999, the Supreme Court refused the applicants leave to appeal.
B. Relevant domestic law
According to Chapter 25, Section 14(3), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) as in force at the relevant time, in his appeal to a Court of Appeal an appellant must identify the evidence to be relied on and the facts to be proved by that evidence. According to Chapter 17, Section 7, of that same Act, a court must not allow irrelevant evidence to be presented.
According to Chapter 17, Section 8, of the Code of Judicial Procedure, the parties must obtain the necessary evidence. A court may also, when considered necessary, decide to obtain evidence on its own initiative.
According to Section 44 of the Police Act (poliisilaki, polislagen), a member of the police force, when heard as a witness or otherwise, is not under an obligation to disclose tactical or technical methods required to be kept secret.
COMPLAINTS
1. The applicants complained under Article 6 §§ 1, 2, 3(c) and (d) of the Convention about the lack of a fair hearing as
(a) they were not able to defend themselves properly as witness N. refused without any lawful reason to answer their questions about his whereabouts when observing them and also the questions concerning the identity of the other police officers;
(b) they were not allowed to obtain the attendance and examination of those police officers as witnesses;
(c) the Court of Appeal refused to hold an oral hearing or to refer the case back to the District Court; and
(d) the District Court did not take minutes properly as their questions to witness N. had not been sufficiently recorded in the minutes of the District Court.
2. The applicants also invoke Article 6 §§ 2 and 3(c), without any further reasoning as to the alleged violations of their rights.
THE LAW
1. The applicants complained under Article 6 §§ 1, 2, 3(c) and (d) of the Convention about the lack of a fair hearing as they were not able to defend themselves properly (witness N. refused to answer their questions which, moreover, were not properly recorded in the District Court’s minutes), they were not allowed to obtain the attendance and examination of witnesses, the Court of Appeal refused to hold an oral hearing or to refer the case back to the District Court, and they were not presumed innocent.
Article 6 reads, insofar as relevant, as follows:
“1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... 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:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(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 applicants complain that they did not obtain the attendance and the examination of witnesses on their behalf as the identity of the police officers who had been at the place of the events at issue was not revealed to them by N. during the District Court proceedings and they were not allowed to call them as witnesses before the Court of Appeal at a later stage of the proceedings as the Court of Appeal refused to hold an oral hearing. Neither was the case referred back to the District Court for a re-hearing. The applicants stress that the public prosecutor who knew the identity of the proposed witnesses, and had had discussions with them, had submitted to the Court of Appeal his observations in which he gave his comments as to the relevance of the evidence they could have presented. The Court of Appeal’s evaluation of the relevance of the proposed evidence was, thus, based on the prosecutor’s submissions which the applicants had no possibility to verify or supplement. In addition, the District Court’s minutes of its hearing were insufficient. Therefore, the Court of Appeal did not have adequate information about the facts in question in order to be able to decide the case without a hearing. They also argue that so-called hearsay evidence can by no means be compared to the attendance of a witness before a court. The applicants stress that they would not have put any questions about the other police operation had they been offered an opportunity to hear the witnesses. Their only interest was whether the police officers could say anything about the applicants’ actions that night. Thus, the secrecy of the other operation would not have been put at risk had they been allowed the attendance and examination of the witnesses.
The Government insisted that the information concerning the police operation which was carried out at the time of the events in question at the same area had nothing to do with the applicants’ case. Therefore N. was entitled not to reveal the identity of the other police officers present at the time. This information was given to the District Court by N. and to the Court of Appeal by the public prosecutor who had verified the facts by discussing them with the proposed witnesses in question. The Court of Appeal’s assessment, according to which the new evidence could bring no new relevant information to the applicants’ case, was justified. The allegation concerning the District Court’s minutes was never raised before any domestic authorities.
The Court considers, in the light of the parties’ submissions, that this part of the case raises complex issues of law and of fact under the Convention, including questions concerning the Finnish reservation to Article 6 § 1 of the Convention, the determination of which should depend on an examination of the merits of the application.
2. Insofar as the applicants could be understood to complain under Article 6 §§ 2 and 3(c), which they have also invoked, the Court notes that these complaints have not been substantiated.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants’ complaint concerning the alleged violation of the applicants’ right to have a fair hearing and to obtain the attendance and examination of witnesses;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy