AS TO THE ADMISSIBILITY OF
Application No. 30541/96
by Hannu Olavi RÖNKÄ
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM N. BRATZA, Acting President
M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
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 6 February 1996
by Hannu Olavi RÖNKÄ against Finland and registered on 21 March 1996
under file No. 30541/96;
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 Finnish citizen, born in 1969. He resides in
Oulu and is serving his prison sentence in Pelso Central Prison. Before
the Commission he is represented by Mr Matti Sarkkinen, a lawyer
practising in Oulu.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was arrested on 24 August 1994 for the purpose of
bringing him before a court and on the basis of suspicion of having
committed offences which had to be investigated. On 25 August 1994 he
was served with an indictment covering seven offences including, among
other things, theft, hiding stolen goods and disturbance of domestic
peace. On 28 August 1994 the Oulu District Court (käräjäoikeus,
tingsrätt) decided to detain the applicant on remand pending trial. On
15 September 1994 the applicant was served with an indictment covering
six additional offences including two counts of aggravated theft.
The case was heard for the first time on 20 September 1994 before
the District Court. The applicant admitted having committed some of the
offences and denied others. Two witnesses called by the prosecutor were
heard. The case was adjourned until 4 October 1994.
On 4 October 1994 the case continued before the District Court.
The applicant and his legal counsel were present. The applicant was
charged with several additional offences. The applicant denied all the
new charges. The prosecutor called two new witnesses but neither of
them appeared for which reason the prosecutor requested that the case
be adjourned in order to hear at least one of them. The applicant
requested that the case be transferred to another Chamber of the
District Court as he had been charged with other offences and was to
be tried before that Chamber the following day. The District Court
rejected the request to join the cases as it found such a step
unnecessary having regard in particular to the fact that the applicant
was charged in the other Chamber with offences for which only fines
could be imposed and since there were several other accused involved
in that case. The case was adjourned until 10 October 1994.
On 10 October 1994 both the applicant and his legal counsel were
present at the hearing. The prosecutor and the applicant called two
witnesses each. During the hearing of the witnesses the presiding judge
denied the applicant the right to put questions to the witnesses
personally as he was legally represented in court. The applicant also
named three witnesses whom he had not been able to call to the hearing
and requested that the case be adjourned in order to hear these
witnesses on his behalf. The prosecutor objected to this because, in
his opinion, these witnesses could not add anything new to the case and
since it was likely that one of them would later be charged with the
same offences himself. On the basis of the available documents and
information the District Court rejected the applicant's request to hear
the above-mentioned three further witnesses as they could not, in the
Court's view, add anything of relevance to the case and as one of them
risked being charged with the same offences himself. The District Court
adjourned the case until 24 October 1994 on which date judgment would
be pronounced.
In its judgment of 24 October 1994 the District Court convicted
the applicant of nineteen different offences and sentenced him to one
year and eight months' imprisonment.
The applicant appealed to the Rovaniemi Court of Appeal
(hovioikeus, hovrätt) stating, among other things, that his right to
examine and have examined witnesses against him and to obtain
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him was violated. He maintained that
the District Court had on 10 October 1994 rejected his request to call
certain witnesses even though their statements, in the applicant's
opinion, would have been important to his defence. The applicant also
referred to the fact that the presiding judge had denied him the right
to put questions to the witnesses personally.
On 14 March 1995 the Court of Appeal confirmed the refusal not
to hear further witnesses as they could not, also in the opinion of the
Court of Appeal, add anything of relevance to the case. In its judgment
of the same date the Court of Appeal acquitted the applicant of two
offences and upheld the conviction as regards the others. The Court of
Appeal reduced the sentence to one year and four months' imprisonment.
The applicant requested leave to appeal to the Supreme Court
referring to the same points as those raised in the Court of Appeal.
On 16 August 1995 the Supreme Court (korkein oikeus, högsta domstolen)
refused him leave to appeal.
COMPLAINTS
1. The applicant complains that he was not afforded a fair trial as
the charges against him were not heard before the same Chamber of the
Court in one trial. He invokes Article 6 para. 1 of the Convention.
2. The applicant also complains that his right 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 was violated as he was not allowed to put
questions to the witnesses himself and as his request to adjourn the
case in order to call further witnesses on his behalf was rejected. He
invokes Article 6 para. 3 (d) of the Convention.
THE LAW
1. The applicant complains that he did not have a fair trial and
refers in particular to the fact that his cases were not heard before
the same Chamber of the District Court in one trial. He invokes
Article 6 para. 1 (Art. 6-1) of the Convention which in its relevant
part reads as follows:
" In the determination ... 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. ..."
The question whether a trial is in conformity with the
requirements of Article 6 para. 1 (Art. 6-1) must normally be
considered on the basis of an examination of the proceedings as a whole
(cf. for example No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230 and No.
12002/86, Dec. 8.3.88, D.R. 55, p. 218). It is, however, not the
Commission's task to express itself as to the appropriateness of a
procedural decision taken when motivated by a proper and efficient use
of the available resources of the legal system. A request to have
criminal cases joined is not as such guaranteed by the Convention and
as far as the Convention issue is concerned, i.e. the right to fair
trial, the Commission considers that the decision of the trial court
not to join the cases against the applicant did not in the present
circumstances disclose any appearance of a violation of Article 6 para.
1 (Art. 6-1) of the Convention.
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.
2. The applicant also complains that his right 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 was violated as his request to adjourn the case
in order to call further witnesses on his behalf was rejected and as
he was not allowed to put questions to the witnesses himself. He
invokes Article 6 para. 3 (d) (Art. 6-3-d) of the Convention which
reads as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
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;"
As regards the applicant's complaint about the hearing of
additional witnesses, the Commission recalls that, as a general rule,
it is for the national courts to assess the evidence before them as
well as the relevance of the evidence which the defendants seek to
adduce. More specifically, Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention leaves it to them, again as a general rule, to assess
whether it is appropriate to call witnesses and it does not require the
attendance and examination of every witness on the accused's behalf
(cf. Eur. Court HR, Vidal v. Belgium judgment of 28 October 1992,
Series A no. 235, pp. 32-33, para. 33 and No. 25062/94, Dec. 18.10.95,
D.R. 83-A, p. 77 and No. 25096/94, Dec. 6.9.95, D.R. 82-A, p. 117).
In the present case the Commission notes that District Court had
heard six witnesses and the request to hear further witnesses was made
thereafter. The District Court found that the witnesses in question
could not in addition to the evidence already available add anything
of relevance to the case. The Court of Appeal accepted this, and the
Supreme Court did not grant leave to appeal.
In these circumstances, the Commission finds no sufficient
grounds to conclude that in the circumstances of the present case the
refusal to take further evidence was incompatible with Article 6
para. 3 (d) (Art. 6-3-d). In particular the Commission has found no
elements which would indicate that the trial courts in the present case
went beyond their discretion to refuse to take evidence when refusing
to hear the witnesses concerned.
As regards the complaint concerning the examination of the
witnesses heard during the trial the Commission recalls that it is in
principle essential that an accused is present when witnesses are being
heard in a case against him (cf. for example No. 8395/78,
Dec. 16.12.81, D. R. 27, p. 50). However, this does not mean that the
accused has an absolute right to put questions to the witness
personally, especially if the accused is legally represented, as long
as the accused has a right to cross-examine the witness at least
through his legal counsel.
In the present case the Commission recalls that the applicant and
his legal counsel were present in court. Nothing indicates that the
applicant was prevented from advising or instructing counsel as to how
questions should be put to the witnesses and nothing indicates that
counsel was in any way prevented from cross-examining the witnesses
concerned.
In these circumstances the Commission is satisfied that the
interests of the defence during the examination of witnesses concerned
could be safeguarded by the lawyer just as well as by the applicant
himself. It follows that this aspect of the case does not disclose any
appearance of a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention either.
It follows that this part of the application is also 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 N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy