AS TO THE ADMISSIBILITY OF
Application No. 24620/94
by Rainer Pertti MALMSTRÖM
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 1 June 1994 by
Rainer Pertti MALMSTRÖM against Finland and registered on 13 July 1994
under file No. 24620/94;
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 1953. He is a worker
and is currently serving a prison sentence in the Helsinki Central
Prison. Before the Commission he is represented by
Mr. Sami Heikinheimo, a lawyer practising in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was arrested on 4 September 1992 under suspicion
of an aggravated narcotics offence and he was detained on remand. On
the same day his home was searched and a small amount of hashish was
found.
By six indictments of 30 September 1992, 14 October 1992 and
15 October 1992, containing a total of eleven counts, the applicant was
charged with aggravated narcotics offences, aggravated narcotics
smuggling, illegal possession of firearms and ammunition and insurance
fraud, all committed between May 1987 and August 1992.
The case was heard in the City Court (raastuvanoikeus) of
Helsinki from 1 October to 24 November 1992. In addition to the
applicant there were twelve other accused. During these proceedings the
Court heard evidence from all the accused and one witness in relation
to the charges brought against the applicant. In relation to the charge
of insurance fraud the City Court had at its disposal a copy of the
notice of damage the applicant had submitted to his insurance company.
The applicant requested that evidence from a witness named J be
heard concerning an alleged "gang war" in order to prove that there was
no "war" between himself and that person. The City Court rejected this
request, stating that the case before the Court did not concern
relations between J and the applicant.
The applicant further requested that a person named A be called
as a witness. A, who was present in the City Court, answered the
questions put to her but did not give evidence under oath.
Finally, the applicant requested that the case be adjourned in
order to hear evidence from a person named K in connection with the
insurance fraud charge. This witness would testify that the alleged
insurance fraud would not have been profitable for the applicant taken
into account that the applicant had just let K repair his car. The City
Court rejected the applicant's request for adjournment as it found such
a measure unnecessary having regard to the evidence already available.
On 24 November 1992 the City Court found the applicant guilty on
the charges brought against him save two counts concerning narcotics
smuggling. The City Court sentenced him to three years and ten months'
imprisonment, the two months and 19 days spent in detention on remand
being credited towards the sentence.
The applicant appealed to the Court of Appeal (hovioikeus) of
Helsinki. He requested that either the witnesses J, A and K be heard
in the Court of Appeal or the case be referred back to the City Court
with a view to hearing these persons as witnesses.
By its judgment of 6 July 1993 the Court of Appeal rejected the
request for an oral hearing and upheld the City Court's judgment.
In his appeal to the Supreme Court (korkein oikeus) the applicant
reiterated the grounds of appeal which he had submitted to the Court
of Appeal.
On 1 December 1993 the Supreme Court refused the applicant leave
to appeal.
COMPLAINTS
The applicant complains of infringements of Article 6 of the
Convention in connection with the criminal proceedings instituted
against him.
He complains that he was not informed in detail of the cause of
the accusations against him. In this respect he maintains that the City
Court based its judgment on pieces of information which had been
obtained in the preliminary investigation but which did not, however,
lead to charges.
The applicant further submits that his guilt has not been proved
according to law since the courts refused to hear evidence from three
witnesses on his behalf. He maintains that this violated his right to
a fair hearing.
THE LAW
1. The applicant complains that he was not informed in detail of the
cause of the accusations against him.
The Commission has examined this complaint under Article 6 para.
3 (a) (Art. 6-3-a), which reads as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, ... and in detail, of the
nature and cause of the accusation against him;
..."
The Commission recalls that this provision points to the need for
special attention to be paid to the notification of the "accusation"
to the defendant (cf. Eur. Court H.R., Kamasinski judgment of
19 December 1989, Series A no. 168, p. 37, para. 79).
In the present case the Commission notes that the applicant was
served with indictments which contained the charges, a statement of the
criminal acts involved and the relevant legal provisions. In these
circumstances the Commission finds that the applicant was sufficiently
informed of "the nature and cause of the accusation against him", for
the purposes of paragraph 3 (a) of Article 6 (Art. 6-3-a). Furthermore,
the question of using evidence obtained in the preliminary
investigation does not fall under Article 6 para. 3 (a) (Art. 6-3-a)
but concerns the evaluation of evidence.
It follows that this part of the application is manifestly ill-
founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that his guilt has not been proved
according to law and refers to the refusal to hear three witnesses on
his behalf.
The Commission has examined this complaint under Article 6 para.
3 (d) (Art. 6-3-d), which reads as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
d. ... to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him; ... "
The Commission recalls that in regard to the hearing of witnesses
it is as a general rule for the national courts to assess the evidence
before them as well as the relevance of the evidence which defendants
seek to adduce. Article 6 para. 3 (d) (Art. 6-3-d) of the Convention
leaves it to the national courts to assess whether it is appropriate
to call witnesses and it does not require the attendance and
examination of every witness. Its essential aim is to secure an
equality of arms in the matter (cf. Eur. Court H.R., Vidal judgment of
22 April 1992, Series A no. 235-B, p. 32, para. 33).
The Commission recalls that in the present case the criminal
proceedings instituted against the applicant concerned eleven counts,
inter alia related to narcotics offences and fraud. The Commission also
recalls that one of the proposed three witnesses was questioned and
that her statement, even if not given under oath, was entered in the
court transcripts. As to one of the proposed three witnesses the City
Court based its refusal to hear this evidence on the fact that the case
did not concern relations between the applicant and the proposed
witness and therefore it found it unnecessary to hear this evidence.
The evidence of the third proposed witness was likewise excluded as the
City Court found it unnecessary to adjourn the case for this purpose.
The Commission has found no factors which would indicate that the
City Court's decision was unfair or arbitrary. The City Court did not,
in the Commission's view, go beyond its proper discretion in refusing
to hear the witnesses requested. Accordingly, an examination of this
complaint does not disclose any appearance of a violation of Article
6 para. 3 (d) (Art. 6-3-d) of the Convention.
In conclusion, the Commission considers that an examination of
the conformity of the trial as a whole with the rules laid down in
Article 6 (Art. 6) of the Convention has not disclosed any appearance
of a violation of this provision.
It follows that this part of the application is also manifestly
ill-founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy