AS TO THE ADMISSIBILITY OF
Application No. 18686/91
by Kai OJANEN
against Finland
The European Commission of Human Rights sitting in private on
31 March 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 18 October 1990
by Kai OJANEN against Finland and registered on 19 August 1991 under
file No. 18686/91;
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 1944 and resident in
Helsinki. He is retired.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
On 10 December 1987 the applicant's attorney (oikeudenkäynti-
asiamies, rättegångsombud) requested that criminal charges be brought
against the applicant, alleging that he had been insulted by the
applicant over the telephone.
On 26 January 1989 the City Court (raastuvanoikeus, rådstuvu-
rätten) of Helsinki convicted the applicant of continuous disturbance
of domiciliary peace and insults and sentenced him to fines. The
applicant was found to have insulted his attorney by telephoning him
at work "on numerous occasions in 1987". Some telephone calls had
reached the attorney directly and some had been taped by a telephone
answering machine. The contents of two cassettes had been transcribed
and included in the pre-trial record.
The City Court's reasoning was the following:
"[The applicant] has, on numerous occasions in 1987, called
P. at his work place with a clear intention of disturbing
him. (He has) thereby, either directly or by leaving
messages on P.'s telephone answering machine, insulted P.
by very insulting expressions and threats."
At a hearing on 3 November 1988 the applicant had stated that he
did not remember having made any of the telephone calls included in the
pre-trial record. He admitted, however, having telephoned the attorney
in regard to a commission and having used strong language (in Finnish
"suorat sanat"). At the Public Prosecutor's request the trial was
postponed in order to enable him to present further evidence in the
form of recordings on the attorney's telephone answering machine. The
applicant's request to be assisted by official counsel was rejected.
Also the attorney attended the first hearing.
At the second hearing on 26 January 1989 the Prosecutor presented
the two cassettes, the contents of which had been transcribed and
included in the pre-trial record. These were included in the Court's
file. The applicant again denied the charges. He further requested that
the tape recordings be played by the City Court and that the time when
the calls allegedly made by him had taken place be specified, as the
latter was of importance with regard to the period of limitation for
the offences in question.
The attorney did not attend the second hearing.
The applicant, now represented by counsel, appealed against the
City Court's judgment to the Court of Appeal (hovioikeus, hovrätten)
of Helsinki, referring to his submissions before the District Court.
He further stated that he had commissioned the attorney in 1985 for
legal proceedings to begin in 1986. He had subsequently called the
person in question a few times and also written to him, particularly
in 1986, in order to obtain a settlement regarding the case for which
the lawyer had been commissioned. However, only some of the applicant's
letters had contained expressions referred to by the Prosecutor.
On 5 June 1990 the Court of Appeal rejected the appeal, finding
no reasons for changing the City Court's judgment.
The applicant's request for leave to appeal to the Supreme Court
(korkein oikeus, högsta domstolen) was rejected on 26 September 1990.
Relevant domestic law
The period of limitation for reporting to the prosecutor the
offence of which the applicant was convicted is one year from the date
when the complainant finds out about the offence and the perpetrator
and two years for the prosecutor to bring charges (Chapter 8, Section
1, para. 1 and Section 6 of the Criminal Code (rikoslaki, strafflagen).
Courts shall see to it that cases are being thoroughly dealt with
(Chapter 14, Section 4 of the Code of Judicial Procedure). Insofar as
oral submissions to a court can be assumed to be of relevance, they
shall be reproduced and immediately be read out. The party shall be
asked whether he objects to the way in which his submission has been
reproduced. Any remark not leading to an amendment to the minutes shall
be noted in the minutes (Chapter 14, Section 5 of the Code of Judicial
Procedure).
COMPLAINTS
The applicant complains that he did not receive a fair trial. The
charges brought against him were not thoroughly examined by the courts.
Although the messages recorded by the answering machine had been
transcribed in the pre-trial record, no distinction had been made
between the persons who had telephoned the applicant's former counsel.
It was never exactly determined when the calls which had led to the
applicant's conviction, had been made. Moreover, the prosecutor handed
the tape recordings over to the City Court in the applicant's absence,
and these were neither played at a public hearing, although this was
requested by the applicant, nor were they examined by the City Court
in any other manner. The President of the City Court allegedly refused
to show him the tape recordings and the telephone answering machine.
In his observations of 6 May 1992 the applicant further complained that
he was unable to challenge the complainant's allegations before the
courts, as the case was decided in the complainant's absence.
The applicant further complains that nothing of his 3-4 minute-
long oral submission to the City Court at its first hearing was
reproduced in the court's minutes, for which reason he had to repeat
his submission in writing at the second hearing; that at the second
hearing the President refused to reply to his question why his oral
submission had been left out from the minutes of the first hearing, as
well as to his request that the tape recordings be played by the City
Court; and that the events at the hearing were not reproduced in the
minutes in the correct order. Thus, the City Court was in breach of
Chapter 14, Sections 4 and 5 of the Code of Judicial Procedure.
The applicant finally complains of the lack of reasoning in the
court decisions.
He invokes Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 October 1990 and registered
on 19 August 1991.
On 10 January 1992 the Commission decided to request the
respondent Government to submit their written observations on the
admissibility and merits of the application. It further decided to
refer the application to the First Chamber.
On 30 March 1992 the Government submitted their observations.
The applicant's observations in reply were submitted on 6 May
1992. Further observations were submitted by him on 10 January 1993.
THE LAW
The applicant complains of the way in which evidence was taken
and assessed in his case, and, in particular, of the fact that the
telephone calls recorded by the answering machine were not played at
a public hearing for the purpose of establishing whether the calls for
which he had been indicted had really been made by him. Moreover, the
applicant was refused access to the recordings. In his observations of
6 May 1992 the applicant further complained that he was unable to
challenge the complainant's allegations before the courts, as the case
was decided in the complainant's absence.
The applicant further complains that nothing of his oral
submission to the City Court at its first hearing was reproduced in the
court's minutes, for which reason he had to repeat his submission in
writing at the second hearing. He further alleges that at the second
hearing the President of the City Court refused to reply to certain
questions put by him, and that the events at the hearing were not
reproduced in the minutes in the correct order. Thus, the City Court
was in breach of Chapter 14, Section 5 of the Code of Judicial
Procedure.
The applicant invokes Article 6 (Art. 6) of the Convention, which
reads, in so far as it is relevant:
"1. In the determination 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:
...
b. to have adequate time and facilities for the
preparation of his defence
...
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 Government submit that the complaints are manifestly ill-
founded. The tape recordings were admittedly handed over to the City
Court in the applicant's absence. The courts found it more suitable for
the purpose of a hearing that the tape recordings be transcribed and
included in the pre-trial record. Part of their contents were, however,
attached to the minutes from the first hearing before that court. The
applicant had adequate time to comment on them during the second
hearing as well as in his submissions to the courts of appeal. The
applicant's defence was thereby not significantly impeded and the
transcription of the recordings had the same effect as the playing of
the tapes before the courts. Reference is made to the Gillow judgment
(Eur. Court H.R., judgment of 24 November 1986, Series A no. 109, pp.
27-28, para. 71). The courts considered that the contents of part of
the telephone calls linked them to the applicant's commission to the
complainant. Those calls could be dated with some accuracy through
indications in other telephone calls recorded.
The Government further submit that the telephone recordings as
such were not the sole evidence forming the basis for the applicant's
conviction. The courts further had regard to testimony by the
complainant. Finally, the applicant himself, although denying having
intended to disturb or insult the complainant, did admit having
telephoned him on some occasions and having resorted to strong
language. A more specific indication in the City Court's decision of
the dates when the telephone calls forming the basis for the
applicant's conviction had been made would have been irrelevant to the
question whether part of the charges had been brought after the expiry
of the period of limitation. The City Court's decision included the
charges brought, a description of the offence, the legal provisions
applied and the sanction imposed. This reasoning sufficiently informed
the applicant of the court's assessment of the charges and the outcome
of the case.
The Government finally point out that Chapter 14, Section 5 of
the Code of Judicial Procedure provides Presiding Judges with a wide
discretion when it comes to conducting hearings and determining the
relevance of oral submissions for the purpose of reproducing them in
the minutes. The failure of the Presiding Judge to have the applicant's
oral submissions reproduced and to reply to the applicant's questions
being matters which cannot be corrected in a later hearing, the
complaint in this respect is, in the Government's view, incompatible
ratione temporis.
The applicant contends that before the City Court he did admit
having telephoned the complainant and having used "strong language".
He had submitted, however, that he could not remember having made the
calls transcribed in the pre-trial record. Although the City Court's
reason for holding a second hearing was to enable the prosecution to
present the tape recordings, the contents of the tapes presented at the
second hearing had never been and were not shown to him and their
contents in no way verified. The City Court thereby violated not just
the Convention but also Chapter 14, Section 4 of the Code of Judicial
Procedure, which prescribes that courts shall carefully investigate
matters before them. It cannot be excluded that someone else had
disguised himself as the applicant when telephoning the complainant.
The applicant chose not to comment on the transcription in the pre-
trial record, as the Presiding Judge had refused to play the
recordings. The appropriate time for such comments would have been
after the recordings had been played to him.
The applicant refutes the Government's assertion that the
transcriptions of the recordings indicated with sufficient clarity when
the calls had been made. The call which did indicate the day and the
month when it had been made did not, however, indicate the year.
The applicant further points out that he was not represented by
counsel before the City Court. Moreover, the complainant was never
heard by the City Court about the contents of the recordings. The
refusal by the Presiding Judge to read out loud the parts of the
applicant's oral submissions which had been reproduced in the court's
minutes was clearly in breach of Chapter 14, Section 5 of the Code of
the Judicial Procedure. The questions which the applicant put to the
Presiding Judge and which remained unanswered were pertinent.
(i) The Commission first has to ascertain whether, and to what
extent, it is competent ratione temporis to deal with the application.
It recalls that in accordance with the generally recognised rules of
international law, the Convention only governs, for each Contracting
Party, facts subsequent to its entry into force with regard to that
Party (see e.g. No. 9453/81, Dec. 13.12.82, D.R. 31 pp. 204, 208). In
its case-law the Commission has held that, where the facts consist of
a series of legal proceedings, the date of entry into force of the
Convention in respect of the Contracting State in question has the
effect of dividing the period in two, the earlier part escaping the
Commission's jurisdiction ratione temporis, whereas a complaint
relating to the latter part cannot be rejected on this ground. On the
other hand, where a court gives judgment after the entry into force of
the Convention, the Commission is competent to ensure that the
proceedings leading up to this judgment were in conformity with the
Convention as the proceedings before a court are embodied in its final
decision which thus incorporates any defect by which they may have been
affected (cf. No. 8261/78, Dec. 11.10.79, D.R. 18 p. 150, confirmed in
No. 11306/84, Dec. 16.10.86, D.R. 50 p. 162; see further, as regards
Finland, No. 17925/91, Dec. 8.10.91, unpublished).
In the present case the proceedings before the City Court of
Helsinki terminated with the judgment of 26 January 1989, i.e. prior
to 10 May 1990, which is the date of entry into force of the Convention
with respect to Finland. These proceedings are therefore, as such,
outside the competence of the Commission ratione temporis.
(ii) The Commission has next considered the application insofar as it
pertains to the proceedings before the Court of Appeal of Helsinki and
the Supreme Court.
The proceedings before the Court of Appeal started before the
entry into force of the Convention with respect to Finland, i.e. prior
to 10 May 1990, but terminated after that date, i.e. on 5 June 1990.
The Commission is therefore competent to examine whether the
proceedings before the Court of Appeal leading to the judgment rendered
on the last-mentioned day were in conformity with the Convention, as
the proceedings before the Court are embodied in its judgment which
thus incorporates any defects by which they may have been affected.
Also the proceedings before the Supreme Court are within the
Commission's competence ratione temporis.
The Commission notes, however, that the applicant does not
complain about the proceedings before the Court of Appeal or the
Supreme Court as such, but rather about the failure of those courts to
rectify the alleged procedural errors made by the City Court. The
question therefore arises whether the acceptance of these alleged
errors by the higher courts can bring the alleged violations of Article
6 (Art. 6) into the Commission's competence.
The Government submit in this respect that "[t]he Court of Appeal
of Helsinki had competence to examine the case of [the applicant] in
full." Referring further to the fact that "[t]he City Court's decision
[was] in a way included in the 'no change' decision of the Court of
Appeal", as well as to the fact that the applicant raised all the
alleged errors before the Court of Appeal and the Supreme Court, the
Government conclude that
"the procedural errors by the City Court committed before
the entry into force of the Convention seem to fall within
the competence of the Commission. It is the view of the
Government that such [an] error, which has occurred before
the entry into force of the Convention with regard to
Finland, and which could not be corrected in any later
hearing, is, however, beyond the competence ratione
temporis of the Commission."
The Commission considers that, insofar as compatibility has been
admitted by the Government, it is competent ratione temporis to examine
the application. It is further not required to decide whether some of
the complaints fall outside the Commission's competence for the reason
stated by the Government, as the application is in any case
inadmissible as a whole for the reasons stated below.
(ii) The Commission observes that in its examination of the case it
is not required to take into account the fact that the applicant was
unable to question the complainant before the City Court violates
Article 6 (Art. 6) of the Convention, as it follows from Article 26
(Art. 26) of the Convention that the Commission may only entertain a
complaint raised within a period of six months from the date of the
final domestic decision. In this case, the Supreme Court's decision was
rendered on 26 September 1990, while the particular complaint at issue
was made on 6 May 1992, which is more than six months later. It follows
that this part of the application has been lodged out of time and must
be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
(iii) As regards the remainder of the applicant's complaints the
Commission recalls that the guarantees in paragraph 3 of Article 6
(Art. 6-3) of the Convention are specific aspects of the right to a
fair trial enshrined in paragraph 1. The application should therefore
be examined under the two provisions taken together (Eur. Court H.R.,
Eur. Court H.R., Artner judgment of 28 August 1992, para. 19, to be
published in Series A no. 242-A).
The admissibility of evidence is primarily a matter of regulation
by national law and, as a rule, it is for the national courts to assess
the evidence before them. The Convention organs' task is to ascertain
whether the proceedings considered as a whole, including the way in
which evidence was taken, were fair (Eur. Court H.R., Asch judgment
of 26 April 1991, Series A no. 203, p. 10, para. 26).
The Commission considers that the Gillow case referred to by the
Government is distinguishable from the present one. True, the applicant
in that case was refused access to tape recordings in order to verify
whether they had been correctly transcribed. The recordings were,
however, not evidence submitted to the first-instance court, but were
recordings of the hearing before such a court and were, thus, the
court's own material. The recordings at issue in the present
application constituted an important part of the evidence submitted by
the prosecution and leading to the applicant's conviction. The
applicant was not present when the prosecutor submitted the tapes to
the City Court, nor were the tapes played in his presence before that
court or during the pre-trial investigation. The applicant insisted
that they should have been played before the City Court, in order to
enable it to judge whether or not the telephone calls at issue had been
made by him.
The Commission recalls that all the evidence in criminal
proceedings must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument (cf. the above-
mentioned Asch judgment, para. 27). Nevertheless, the Commission
cannot find any appearance of a violation of Article 6 (Art. 6) because
of the manner in which the City Court dealt with the recordings.
Although the recordings were handed over to the City Court in the
applicant's absence it is clear from his complaint that he was aware
that this had been done. The contents of the recordings were reflected
in the pre-trial record. Thus, they were available to the applicant,
who had the possibility to comment on them before the courts.
The Commission further notes that the tape recordings were not
the only evidence on which the conviction was based. In addition, the
City Court took into account the testimony presented by the
complainant, with whom the applicant was confronted at the first
hearing before the City Court, as well as the statements by the
applicant himself in which he admitted having made some telephone calls
to the complainant and having used strong language in that connection.
The Commission notes that the City Court referred to the
telephone calls as having been made "on numerous occasions in 1987".
However, even assuming that some of the calls had been made in the very
beginning of 1987, a specification of the dates when those had been
made would not have affected the period of limitation, as the period
of limitation as prescribed by Chapter 8, Sections 1 and 6 of the
Criminal Code had, in any case, been complied with.
The Commission further observes that, while admittedly the
applicant's oral submissions at the City Court's first hearing were not
reproduced in the minutes, the applicant did not, at the second
hearing, avail himself of the possibility to submit those observations
in writing. Moreover, there is no indication that the refusal of the
Presiding Judge to reply to the applicant's questions created
inequality between the parties. In these circumstances the Commissions
finds no appearance of a violation of Article 6 (Art. 6) of the
Convention.
The Commission finally recalls that in exceptional circumstances
the absence of reasons in a court decision may raise an issue as to the
fairness of the procedure which is guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention (e.g. No. 10857/84, Dec. 15.7.86, D.R. 48
pp. 106-153 at pp. 150-151; No. 8769/79, Dec. 16.7.81, D.R. 25 pp. 240-
242 at p. 241). The national courts must indicate with sufficient
clarity the grounds on which they have based their decision (Eur. Court
H.R., Hadjianastassiou judgment of 16 December 1992, para. 33, to be
published in Series A no. 252). Article 6 (Art. 6) does not require,
however, that reasons given by a court should deal specifically with
all points and arguments which may have been considered by one party
to be essential to his case (the above-mentioned Application No.
10857/84, loc. cit.). In the assessment of the sufficiency of the
reasoning under Article 6 (Art. 6) an important consideration is
whether the reasons given by a lower court in a criminal case have made
it possible for the accused to exercise usefully the rights of appeal
available for him (the above Hadjianastassiou judgment, loc. cit.).
Insofar as appeal instances are concerned, however, Article 6 (Art. 6)
does not require that a court, when rejecting an appeal by reference
to the reasoning given by a lower court, accompanies its decision by
detailed reasons (No. 10733/84, Dec. 2.10.84, unpublished).
The Commission notes that in the present case the City Court's
decision, though brief, explained the proven facts, their legal
qualification, the legal provisions applied and the sanction imposed.
Although a more detailed reasoning might have been preferable from the
applicant's point of view, the Commission finds that the reasoning by
the City Court was sufficient for the purpose of enabling the applicant
to exercise his right of appeal in a normal way.
True, the decision of the Court of Appeal was not accompanied by
any other reasoning than a statement that there were no reasons for
changing the City Court's judgment. However, as the Court of Appeal
must be interpreted thereby to have fully accepted the reasoning by the
City Court, the lack of detailed reasons in the Court of Appeal's
decision raises as such no issue under Article 6 (Art. 6).
In the above circumstances the Commission cannot find any
indication of a violation of Article 6 para. 1 (Art. 6-1) 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.
(iv) The applicant finally complains about the allegedly defective
reasoning in the decision of the Supreme Court refusing him leave to
appeal.
The Commission recalls, however, that proceedings leading to the
refusal of leave to appeal do not involve a "determination" of a
criminal charge (No. 19823/92, T. and S. v. Finland, Dec. 9.2.93,
unpublished; cf., mutatis mutandis, No. 11855/85, Dec. 15.7.87, D.R.
53 p. 190 at pp. 199-200).
It follows that this part of the application must be rejected as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
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) (J.A. FROWEIN)
Full & Egal Universal Law Academy