FOURTH SECTION
DECISION
Application no. 32692/05
by Harri Kalevi TARPEENNIEMI
against Finland
The European Court of Human Rights (Fourth Section), sitting on 5 May 2009 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar.
Having regard to the above application lodged on 9 September 2005,
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Harri Kalevi Tarpeenniemi, is a Finnish national who was born in 1960 and lives in Katinala. He is represented before the Court by Mr P. Romo, a lawyer practising in Hämeenlinna. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and as they appear from the documents on the file, may be summarised as follows.
On 2 February 2004 the public prosecutor preferred charges against the applicant based on three counts of assault. The applicant denied the charges.
On 30 March 2004 the Hämeenlinna District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged, amending however the time of the commission of the offences, and sentenced him to a fine of 1,950 euros (EUR) and to pay EUR 1,000 to each of the three complainants for pain and suffering. The conviction was based on the testimonies of one of the complainants and a third person. In the light of these testimonies, the District Court found that the applicant’s account of the events was not credible.
The applicant appealed, requesting an oral hearing with a view to hearing fresh witnesses. He also argued that the above-mentioned witness statements admitted in the lower court were contradictory and unreliable.
On 27 August 2004 the Turku Court of Appeal (hovioikeus, hovrätten) used the filtering procedure and upheld the District Court’s judgment without further examination of the case.
On 11 March 2005 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
B. Relevant domestic law and practice
The filtering procedure is based on Chapter 26, articles 2 and 2a, of the Code of Judicial Proceedings (oikeudenkäymiskaari, rättegångsbalken, as amended by Act no. 381/2003 and in force since 1 October 2003).
The Court of Appeal may filter a case, that is, uphold the District Court’s judgment without a full examination, when three judges agree, at any stage of the proceedings, that 1) an oral hearing is not necessary according to Chapter 26, article 15, 2) the lower court’s finding or the procedure applied was not defective, or 3) the legal protection of the parties concerned does not require the continuation of the proceedings. Chapter 26, article 15 (as amended by Act no. 165/1998) provides:
“(1) The Court of Appeal must hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court or the findings of the District Court in an inspection, or on new testimony to be admitted in the Court of Appeal. In this event, the evidence admitted in the District Court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to this.
(2) If the evidence referred to in paragraph (1) cannot be readmitted at the main hearing, the decision of the District Court must not be changed for that part, unless the evidence for any special reason is to be assessed differently. However, a decision on a charge may be altered in favour of the defendant in a criminal case.”
In the filtering procedure the material to be taken into account comprises the letter of appeal, the judgment of the District Court as well as other possible submissions requested by the Court of Appeal.
The Supreme Court has given numerous judgments on the applicability of the filtering procedure. According to the case-law and the preparatory works of the Act, a full examination and an oral hearing are necessary when the decision is dependent on the credibility of the testimonies.
COMPLAINTS
The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that the Court of Appeal should have devoted a full examination to his case and organised an oral hearing instead of applying the filtering procedure, which cannot be applied when the adjudication of the case would be dependent on the credibility of oral evidence. This had been the case here. In addition, he had proposed that fresh witnesses be heard in the Court of Appeal.
THE LAW
On 5 March 2009 the Court received the following declaration from the Government:
“I, Arto Kosonen of the Ministry for Foreign Affairs, declare that the Government of Finland offer to pay ex gratia six thousand euros to Mr Harri Kalevi Tarpeenniemi with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 23 March 2009 the Court received the following declaration signed by the applicant:
“I, Harri Kalevi Tarpeenniemi, applicant in the above case, note that the Government of Finland are prepared to pay me ex gratia the sum of six thousand euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Finland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy