AS TO THE ADMISSIBILITY OF
Application No. 28941/95
by Christian LUPANDER
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 8 September 1995
by Christian Lupander against Finland and registered on 18 October 1995
under file No. 28941/95;
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 1961 and resident in
Helsinki, Finland. When lodging the application he was serving a prison
sentence in the Vaasa County Prison (lääninvankila, länsfängelset). The
applicant is represented before the Commission by Mr Heikki Salo, a
lawyer practising in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The Public Prosecutor indicted the applicant before the Helsinki
City Court (raastuvanoikeus, rådstuvurätten) on charges of, inter alia,
two counts of aggravated embezzlement committed on 28 March 1989 and
15 January 1990, respectively, and two counts of aggravated fraud
committed on 13 December 1989 and 13 March 1990.
According to the charges of aggravated embezzlement, the
applicant and a co-defendant, in order to obtain financial benefit for
themselves, had used unlawfully the funds they had acquired on the
basis of two sets of contracts with a finance company concerning
certain stock trades, in both cases to the amount of approximately
5,000,000 Finnish marks (FIM), and thereby failed to fulfil their
liability of account as required by the contracts. The Prosecutor
considered that the offences were aggravated in particular because
large amounts of money were involved.
Furthermore, according to the charges of aggravated fraud, the
applicant and a co-defendant had by giving false information deceived
a finance company into financing purchases of non-existing stocks, in
both cases to the amount of FIM 5,000,000, in order to obtain
unjustified financial benefit for themselves or a third party. In doing
so they had caused the company a loss equal to this amount since the
financing was unsecured. The Prosecutor considered that the offences
were aggravated in particular because considerable financial benefit
had been sought.
Chapter 29, section 1 of the Penal Code (rikoslaki, strafflag
39/1889), as in force at the time the acts were committed, provided as
follows:
(Translation)
"A person who appropriates the movable property of
another which is in the possession of the offender shall be
sentenced for embezzlement to imprisonment for a maximum
period of two years or to a fine.
The same applies to a person, who has received funds
on account by way of a commission or in a similar manner,
and who unjustifiably uses the said funds or funds which
have taken their place in order to obtain financial benefit
for himself and in this way causes a situation in which the
liability of account is not fulfilled."
Chapter 29, section 2 of the Penal Code, as in force at the
above-mentioned time, read as follows: (Translation)
"If embezzlement is committed by using faulty accounts
prepared with a view to perpetrating this offence or by
taking advantage of the offender's responsible position or
if the act is directed at very valuable property or a large
amount of funds and the embezzlement is to be deemed
aggravated in the above-mentioned or other cases having
regard to the circumstances which led to the crime and
appear thereof as a whole, the offender shall be sentenced
for aggravated embezzlement ..."
The above-mentioned provisions were amended by Act No. 769/1990
which entered into force on 1 January 1991. Chapter 29, section 1 of
the Penal Code was replaced by chapter 28, section 4, which, as far as
relevant, reads as follows:
(Translation)
"Embezzlement. A person who appropriates assets or other
movable property of which he is in possession shall be
sentenced for embezzlement to a fine or imprisonment for a
maximum period of one year and six months.
...
A person who has received funds on account through a
commission or in a similar manner, and who unjustifiably
causes a situation in which the liability of account is not
fulfilled at the time agreed or otherwise required, by
using the said funds or funds which have taken their place
or by otherwise acting in a similar manner, shall also be
convicted of embezzlement."
The above-mentioned chapter 29, section 2 of the Penal Code was
replaced by chapter 28, section 5 which, as far as relevant, provides
as follows:
(Translation)
"Aggravated embezzlement. If in the embezzlement
1) the object is very valuable property or a large amount
of assets,
2) particularly significant loss is caused to the victim of
the offence, in view of the victim's circumstances, or
3) the offender takes advantage of his particularly
responsible position
and the embezzlement, also when assessed as a whole, is to
be deemed aggravated, the offender shall be sentenced for
aggravated embezzlement to imprisonment for a minimum
period of four months and a maximum period of four years."
Chapter 36, section 1 of the Penal Code, as in force at the time
the acts were committed, read in so far as relevant as follows:
(Translation)
"A person who, in order to obtain unlawful material benefit
for himself or another person, causes another to suffer
loss of property or pecuniary loss by presenting misleading
information, or by distorting or concealing facts, brings
about or maintains an error... shall be sentenced for fraud
to a fine or imprisonment for a maximum period
of two years, or, if the circumstances are
particularly aggravating, ... for a maximum
period of four years."
The above-mentioned provisions concerning fraud were also amended
by Act No. 769/1990. Chapter 36, section 1, subsection 1, as amended,
reads as follows:
(Translation)
"Fraud. A person, who in order to obtain unlawful financial
benefit for himself or another person or in order to harm
another, deceives another or takes advantage of an error of
another so as to have this person do something or refrain
from doing something and in this way causes financial loss
to the deceived person or to the person over whose benefits
this person is able to dispose, shall be sentenced for
fraud to a fine or imprisonment for a maximum period of two
years."
Chapter 36, section 2 of the Penal Code, as in force at the time
the applicant was convicted, provides for aggravated fraud, in so far
as relevant, as follows:
(Translation)
"Aggravated fraud. If the fraud
1) involves the seeking of considerable benefit, [or]
2) causes considerable or particularly significant loss,
...
and the fraud, also when assessed as a whole, is to be
deemed aggravated, the offender shall be sentenced for
aggravated fraud to imprisonment for a minimum period of
four months and a maximum period of four years."
After the proceedings had started the Prosecutor appeared in a
television programme where he was interviewed in connection with the
domestic proceedings in the present case. The Prosecutor commented on
what had been discovered in the police investigation and with what the
applicant was charged.
In the course of the proceedings the City Court heard the victims
of the crimes and the defendants as regards the above-mentioned
charges. The applicant pleaded not guilty claiming in particular, as
regards the two counts of aggravated embezzlement, that he had later
fulfilled the liability of account and, as regards the two counts of
aggravated fraud, that the acts had not caused material loss as
required by the relevant provision. He contended that these acts did
not constitute criminal offences at the time they were committed and
that, therefore, the law in force at that time ought to be applied.
Furthermore, he considered that the fairness of the trial had been
affected by the Prosecutor's television appearance.
On 18 October 1993 the City Court pronounced judgment. The City
Court found it established, inter alia, that as described in the
charges, the applicant had broken the contracts he had made concerning
the financing of the stock trades and used unlawfully the relevant
funds thereby failing to fulfil the terms of the contracts as regards
rendering of accounts in accordance with them. In doing so he had
obtained financial benefit. As regards one of the acts the City Court
considered that both the law in force at the time the acts were
committed and the law in force at the time judgment was pronounced were
applicable, the latter being less severe.
Furthermore, the City Court found that the applicant, as
described in the charges in order to gain unlawful financial benefit
for himself and another person, had committed fraud and that both the
law in force at the time the acts were committed and the law in force
at the time judgment was pronounced were applicable, the latter being
less severe.
Applying the law in force at the time judgment was rendered, the
City Court convicted the applicant of, inter alia, two counts of
aggravated embezzlement and two counts of aggravated fraud and
sentenced him to a total of two years and three months' imprisonment
and ordered him to pay damages.
On 16 November 1993 the applicant, among others, appealed to the
Helsinki Court of Appeal (hovioikeus, hovrätten) renewing his earlier
submissions and requesting, inter alia, that he be acquitted or his
sentence be reduced. He also requested that an oral hearing be held in
the Court of Appeal.
On 8 September 1994 the Court of Appeal upheld the judgment of
the City Court as far as relevant without holding an oral hearing.
Subsequently, the applicant requested access to the memorandum
of the Referendary of the Court of Appeal. He was granted access only
to the public part thereof but denied access to the part which is
regarded as a part of the deliberations in camera of the Court of
Appeal.
On 6 November 1994 the applicant requested leave to appeal to the
Supreme Court (korkein oikeus, högsta domstolen) referring, inter alia,
to the choice of applicable law and the influence of the Prosecutor's
above-mentioned television interview about the trial. The applicant
demanded acquittal, reduction of sentence or a return of the case to
the Court of Appeal.
On 9 March 1995 the Supreme Court refused the applicant leave to
appeal.
COMPLAINTS
1. The applicant complains that he was denied a fair trial. He
maintains that the courts failed to elaborate sufficient reasoning for
their judgments. He alleges that it does not appear from the judgments
on what grounds the courts considered that his acts fulfilled the
definitions of aggravated embezzlement and fraud committed under
particularly aggravating circumstances as prescribed in the relevant
national provisions in force at the time the acts were committed. The
applicant also complains that the Court of Appeal refused him access
to that part of the Referendary's memorandum which is regarded as a
part of its deliberations in camera and that the refusal on its part
prevented him from knowing the reasons for the judgment of the Court
of Appeal. The applicant invokes Article 6 of the Convention. 2.
Furthermore, the applicant complains that his right to be presumed
innocent was violated. He maintains that the courts failed to apply the
rule of in dubio pro reo and that the Prosecutor after the first
session in a television programme took a stance to the applicant's
guilt even as regards acts for which he was never indicted. He contends
that the courts failed to take measures as regards the Prosecutor's
behaviour. In this connection the applicant invokes Article 6 para. 2
of the Convention.
3. The applicant also complains that he was held guilty of
aggravated embezzlement and aggravated fraud on account of acts which
did not constitute criminal offences under national law in force at the
time he was convicted. He claims that the acts which were considered
to be aggravated frauds did not cause material loss. He contends that
the courts applied the principle of the more lenient law to his
detriment. The applicant invokes Article 7 of the Convention.
THE LAW
1. The applicant complains that he was denied a fair trial. He
claims that the courts failed to elaborate sufficient reasoning. The
applicant also complains that the Court of Appeal refused him access
to part of the Referendary's memorandum. He invokes Article 6 (Art. 6)
of the Convention which reads as far as relevant:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
In the applicant's opinion, the courts were obliged to determine
whether the provisions in force at the time the acts were committed
applied to them in order to be able to conclude that the less severe
provisions were the ones in force at the time the judgment was
rendered. He alleges that, therefore, it ought to appear from the
reasoning on what grounds the courts based their opinion that the acts
constituted the offences at issue even though the interpretation
allegedly deviated from the established interpretation.
The Commission recognises that failure to give reasons for a
judgment may raise issues regarding the right to a fair hearing as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. According
to the Commission's case-law the effect of this provision is, inter
alia, to place the "tribunal" under a duty to conduct a proper
examination of the submissions, arguments and evidence adduced by the
parties (Eur. Court HR, Kraska v. Switzerland judgment of
19 April 1993, Series A no. 254-B, p. 49, para. 30). The Commission
recalls, however, that it does not follow from this provision that the
reasons given by a court should deal specifically with all points which
may have been raised by one party; a party does not have an absolute
right to require reasons to be given for rejecting each of his
arguments (see e.g. Eur. Court HR, Van de Hurk v. the Netherlands
judgment of 19 April 1994, Series A no. 288, p. 20, para. 61;
No. 15384/89, Dec. 9.5.94, D.R. 77-B, p. 5; No. 16717/90, Dec. 9.1.95,
D.R. 80-A, p. 24; No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98).
In the present case the Commission observes that the City Court
gave a reasoned judgment in which it found that the applicant had
committed, inter alia, two counts of aggravated embezzlement and two
counts of aggravated fraud. As indicated above, the Court of Appeal
accepted the City Court's reasoning in so far as relevant and the
Supreme Court refused leave to appeal. In these circumstances the
Commission considers that the courts have given sufficient reasoning
for the judgment.
As regards the complaint concerning the Referendary's memorandum,
the Commission finds no indication that the refusal to disclose to the
applicant the section which formed part of the deliberations of the
Court of Appeal violated Article 6 (Art. 6) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that his right to be presumed
innocent was violated. He claims that the courts failed to apply the
rule of in dubio pro reo and that, in a television programme, the
Prosecutor took a stance to his being guilty of certain crimes. He
invokes Article 6 para. 2 (Art. 6-2) of the Convention which reads as
follows:
"2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
As regards the application of the rule of in dubio pro reo, the
Commission considers that the complaint involves the evaluation of
evidence. The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by 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 or one of its Protocols (cf. Eur. Court HR, Schenk v.
Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.
45).
In the present case the Commission notes, as indicated above,
that the City Court rendered a judgment in which it assessed the
evidence and consequently reached a reasoned conclusion. The Court of
Appeal accepted the City Court's judgment to the relevant part and the
Supreme Court refused the applicant leave to appeal. The Commission has
not found any appearance of a violation of the Convention or its
Protocols as regards this particular aspect of the proceedings.
The Commission recalls that it has accepted that in certain cases
a media campaign can be prejudicial to the fairness of a trial and
involve the State's responsibility, particularly where it is sparked
off by the state's organs (see e.g. No. 17265/90, Dec. 21.10.93,
D.R. 75, pp. 76-77; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106 at
p. 144 and the reference therein). The Commission considers, however,
that account must be taken of the specific circumstances of the case
and a balance be struck between the interests of the public and the
media to be informed and the interest of the person suspected of an
offence to the protection of the presumption of innocence. The question
whether media publication is contrary to the presumption of innocence
depends on the content of the material published (No. 10847/84,
Dec. 7.10.85, D.R. 44, p. 238). The Commission notes that while
the present case was pending before the City Court the Prosecutor
appeared in a television programme and made comments on the results of
the police investigation and the charges. However, the Commission notes
that while the Prosecutor explained why he was prosecuting the
applicant he did not take an express stance to the applicant's guilt
(cf. No. 14106/88, Dec. 6.12.91, unpublished). Considering that some
publicity is inevitable in connection with an extensive criminal case
involving considerable economic interests, the Commission is of the
view that the television interview in question did not violate the
presumption of innocence or render the proceedings otherwise unfair in
breach of Article 6 (Art. 6) of the Convention.
The Commission also attaches importance to the fact that the
applicant had the opportunity to challenge in the trial courts the
comments the Prosecutor made in the television programme. The
Commission has not found any appearance of a violation of the
Convention or its Protocols as regards this particular aspect of the
proceedings.
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.
3. The applicant finally complains that he was convicted of acts
which, when they were perpetrated, did not constitute offences under
the law in force. He invokes Article 7 (Art. 7) of the Convention which
reads as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
2. This Article shall not prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognised by civilised
nations."
According to the case-law of the Convention organs, Article 7
para. 1 (Art. 7-1) of the Convention prohibits the retrospective
application of the criminal law to an accused's disadvantage and, more
generally, embodies the principle that only the law can define a crime
and prescribe a penalty and prohibits in particular the retrospective
application of the criminal law where it is to an accused's
disadvantage (see e.g. Eur. Court HR, Kokkinakis v. Greece judgment of
25 May 1993, Series A no. 260-A, p. 22, para. 52 and Eur. Court HR,
G. v. France judgment of 27 September 1995, Series A no. 325-B, p. 38,
para. 24 and S.W. v. the United Kingdom judgment of 22 November 1995,
Series A no. 335-B, pp. 41-42, para. 35). The Commission has found that
when there has been an amendment of the criminal law subsequent to the
commission of an offence Article 7 (Art. 7) does not guarantee the
right to have the most favourable criminal law applied even if the
provision at issue had been repealed (see No. 7900/77, Dec. 6.3.78,
D.R. 13, p. 70). Moreover, in the sphere of criminal law, Article 7
para. 1 (Art. 7-1) confirms the general principle that legal provisions
which interfere with individual rights must be adequately accessible
and formulated with sufficient precision to enable the citizen to
regulate his conduct (see e.g. No. 18892/91, Dec. 3.12.93, D.R. 76-A,
p. 51 at p. 62 and the reference therein).
In the present case, the Commission notes that the applicant was
convicted of, inter alia, two counts of aggravated embezzlement and two
counts of aggravated fraud on the basis of the law in force at the time
the judgment was rendered. The Commission considers, however, that at
the time the acts were committed, the facts of which the applicant was
accused fell within the scope of the provisions of the Penal Code on
aggravated embezzlement and fraud committed under particularly
aggravating circumstances. The relevant provisions were accessible and
sufficiently foreseeable. Thus, there is no appearance of a violation
of Article 7 (Art. 7) as regards the application of the law in force
at the time the applicant was convicted which law the courts considered
to be less severe.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy