AS TO THE ADMISSIBILITY OF
Application No. 22183/93
by I.T.L.H.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, 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
G.B. REFFI
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 12 July 1992 by
I.T.L.H. against Finland and registered on 8 July 1993 under file
No. 22183/93;
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 1958 and currently
serving a prison sentence in the Hämeenlinna Central Prison. Before the
Commission she is represented by Ms. Helena Laine, a lawyer in
Helsinki.
The facts, as submitted by the applicant, may be summarised as
follows.
A. The particular circumstances of the case
On 11 May 1990 the police in Vantaa obtained information about
a manslaughter. During the preliminary investigation the police
questioned the applicant, the applicant's brother S and a woman named
P as suspects in relation to the crime. The police also questioned
twelve other persons as witnesses. At a later stage of the preliminary
investigation the police questioned S and P again, but this time as
witnesses and not as suspects.
The applicant was arrested on 20 May 1990 and she remained in
detention on remand until 31 October 1990. It appears that on
1 November 1990 she began to serve a prison sentence for another crime.
The applicant was charged with manslaughter contrary to chapter
21 section 1 of the Penal Code committed on 9 May 1990. The case was
heard by the District Court (kihlakunnanoikeus) of Vantaa. The District
Court heard five witnesses, including S and P. According to the
statements of S, P and the applicant, the three of them had been the
only persons present when the crime took place. Furthermore, the
medico-legal record of the autopsy was submitted to the District Court
and the Court heard the doctor who had performed the autopsy.
The applicant requested that four more persons be called as
witnesses. These were, on the one hand, Y and L on the basis that P had
allegedly confessed to them that she had lied about the applicant's
guilt, the real guilty party being S and, on the other hand, A and K,
who were not eye-witnesses but in whose cottage the applicant had
stayed after the crime.
The District Court rejected the applicant's request for an
adjournment by stating that it was not probable that the proposed new
evidence could change the relevant evidence already obtained.
On 18 June 1991 the District Court found the applicant guilty of
the charges brought against her and sentenced her to 10 years'
imprisonment, the 5 months 12 days spent in detention from 20 May 1990
to 31 October 1990 being credited towards the sentence.
In the meantime, the applicant charged S and P in the same
District Court of having caused her bodily harm on 9 May 1990 in the
aftermath of the manslaughter. According to Finnish law a complainant
has independent standing for prosecution purposes. The accused in this
case, namely S and P, pleaded not guilty to the charges against them.
According to their statements the applicant had broken one of the
windows on S's car and when clearing up this incident S had hit the
applicant and P had kicked her. This incident had taken place some time
after the manslaughter in the vicinity of the scene of that crime. On
4 September 1990 the District Court sentenced S and P, respectively,
to 20 day-fines totalling FIM 400.
The applicant appealed against her conviction to the Court of
Appeal (hovioikeus) of Helsinki, which by its judgment of
17 October 1991 quashed the District Court's judgment of 18 June 1991
and referred the case back to the District Court. The Court of Appeal
stated inter alia the following:
(translation)
"On 18 June 1991 (the applicant) gave the District Court
written statements signed by (L and Y) and requested that
the case be postponed in order to hear them and certain
other persons as witnesses. Nevertheless, the District
Court did not approve the request, but decided the case
without hearing as witnesses, in the light of their written
statements, (L and Y) as well as (P), whose version of
events is described in these statements. The Court of
Appeal considers that the evidence presented in the
mentioned statements may have relevance in evaluating the
case. Because of this the District Court should not have
rejected the request for an adjournment on the grounds set
out in its judgment and it should not have decided the case
without hearing at least these persons as witnesses. Taking
into account also the need to provide legal safeguards in
regard to the possibility of appeal, it is most suitable to
hear these witnesses in the District Court."
The District Court heard the case again and in these proceedings
it heard evidence from witnesses L, Y and P about the alleged
conversations between them. It also heard evidence from the applicant's
present husband H and a witness K about the circumstances after the
manslaughter. It could not hear the man named A, whom the applicant had
also requested as a witness, because the District Court found out that
A had died during the proceedings.
On 27 November 1991 the District Court after evaluating the
evidence found the applicant guilty of the charges against her and
sentenced her to 10 years' imprisonment, the same period being credited
towards the sentence as in its earlier judgment.
The applicant appealed to the Court of Appeal. She submitted that
she was innocent and that the District Court should not have heard S
and P as witnesses because during the preliminary investigation they
had been suspected of the same crime and thus they were to be
considered as parties to the case. The applicant also requested the
Court of Appeal to hold an oral hearing.
By its judgment of 17 March 1992 the Court of Appeal rejected the
request for an oral hearing and upheld the District Court's judgment.
The applicant appealed to the Supreme Court. Her appeal was
directed against the alleged procedural errors due to the hearing of
S and P as witnesses. She also maintained that all the witnesses should
be heard again on account of the assault committed by S and P against
the applicant on the same day as the manslaughter took place. She
further alleged that the evidence obtained in the case did not show
that she was guilty. The applicant referred to chapter 17 section 18
of the Code of Judicial Procedure (oikeudenkäymiskaari), which reads
in so far as relevant as follows:
(translation)
Everyone, except a party or former party to the case, can
be questioned as a witness. In a criminal case an injured
party shall not be questioned as a witness even if he does
not avail himself of his right to be heard in court,
neither shall a person who has earlier been sentenced to
punishment for the same crime be questioned as a witness.
On 16 June 1992 the Supreme Court refused the applicant leave to
appeal.
B. Relevant domestic law
The Court of Appeal may, if it considers it necessary, hold an
oral hearing in a case in which an appeal against the judgment of the
court of first instance has been lodged. Such a judgment cannot, as
regards the charges brought against an accused, be amended by the Court
of Appeal following a re-evaluation of the evidence without a
re-hearing having been held, unless the sentence imposed by the Court
of Appeal amounts only to fines or unless a re-hearing would clearly
be unnecessary. In assessing the latter special regard shall be had to
the interests of the accused (chapter 26, sections 7 and 8 of the Code
of Judicial Procedure).
COMPLAINTS
1. The applicant complains that she did not have a fair trial. She
submits that her guilt has not been proved and thus she should have
been presumed innocent and not been convicted. She claims that she did
not have the opportunity to question witnesses on her behalf under the
same conditions as witnesses against her due to the fact that the
District Court did not hear witnesses on her behalf until 18 months
after the incident and by then one witness, A, had already died. She
submits that it was a gross procedural error to hear S and P as
witnesses under oath since they had both been suspected of the relevant
crime. Furthermore, another criminal case had been pending in the same
District Court, in which the applicant charged S and P of having caused
her bodily harm during the same series of events and the District Court
should have joined the cases. She further submits that her right to a
trial within a reasonable time was violated.
2. Finally, the applicant maintains that it was important for there
to be an oral hearing in the Court of Appeal.
The applicant invokes Article 6 paras. 1, 2 and 3 (d) of the
Convention.
THE LAW
1. The applicant complains of several infringements of Article 6
(Art. 6) of the Convention in connection with the criminal proceedings
instituted against her.
As far as relevant Article 6 paras. 1, 2 and 3 (d) (Art 6-1, 6-2,
6-3-d) of the Convention read as follows:
"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 ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. 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; ..."
a. The applicant has referred not only to Article 6 para. 1
(Art. 6-1) but also to paragraphs 2 and 3 of this Article (Art. 6-2,
6-3). In this respect the Commission recalls that the guarantees in
paragraphs 2 and 3 (Art. 6-2, 6-3) are specific aspects of the right
to a fair trial set forth in paragraph 1 (Art. 6-1) (cf., inter alia,
Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series
A No. 110, p. 14, para. 29). Accordingly, the Commission will have
regard to these aspects when examining the facts under paragraph 1 of
Article 6 (Art. 6-1). The Commission further recalls that it must
consider the proceedings as a whole. Its task is to ascertain whether
the proceedings in their entirety were fair (cf. for example Eur. Court
H.R., Stanford judgment of 23 February 1994, Series A no. 282-A, p. 10,
para. 24).
b. The applicant has raised the question of fair trial with regard
to the presumption of innocence. She maintains that she was wrongly
convicted and that because the evidence did not clearly prove her
guilt, the charge should have been dismissed.
The Commission recalls in this regard that its task is to ensure
the observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of 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. The Commission refers, on this point, to its
constant case-law (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A
p. 88).
The Commission finds that no evidence has been adduced to show
that the applicant's right to the presumption of innocence was
violated.
c. The applicant further complains that her right to examine
witnesses on her behalf under the same conditions as witnesses against
her was violated because she could question witnesses on her behalf
only after the Court of Appeal had quashed the first judgment and
referred the case back to the District Court.
In this respect the Commission notes that the Court of Appeal
corrected the procedural errors which according to the Court of Appeal
had taken place during the original proceedings in the District Court.
It referred the case to the District Court in order to give the
applicant an opportunity to summon the witnesses she had requested
should be heard. The hearing of the witnesses in the District Court
instead of the Court of Appeal made it possible for the new evidence
to be evaluated first by the District Court and later, if need be, also
by the Court of Appeal. Thus it was in the interests of due process
that the Court of Appeal did not hear these new witnesses directly. The
new witnesses were heard in the District Court in the same conditions
as the witnesses during the original proceedings. The Commission notes
that the witness A, who had died during the proceedings, was not an
eye-witness and that he would have given evidence only about the events
after the crime. Furthermore, the Court of Appeal, which had not been
aware of A's death, had not stated that it would be necessary to hear
evidence from A. During the rehearing the District Court heard the
witness P again. The fact that some time had naturally passed since the
original proceedings does not mean that the applicant's right to
question witnesses within the meaning of Article 6 para. 3 (d) would
have been violated.
d. The applicant further submits that it was a procedural error to
hear S and P as witnesses, because they had been suspected of the
manslaughter. She also maintains that the cases concerning the
manslaughter on the one hand and the assault against her on the other
hand should have been joined.
The Commission notes that S and P were not defendants or
co-defendants in the case concerning the manslaughter. Thus they were
to be considered as witnesses within the meaning of Article 6 para. 3
(d) (Art. 6-3-d). The Commission notes that the underlying question in
the application in this regard is actually the question of how evidence
given by persons who may have a motive to protect themselves should be
evaluated. That the witnesses S and P had caused bodily harm to the
applicant later on the same day does not change their status as
witnesses in the manslaughter case. The assaults against the applicant
and the manslaughter with which the applicant was charged were
different offences committed at different times. The District Court had
no obligation to join these cases. The Commission finds no indication
of such procedural errors concerning the evidence of S and P as would
amount to a violation of Article 6 (Art. 6).
e. Furthermore, the applicant complains about the length of the
proceedings.
The proceedings began with the arrest of the applicant on
20 May 1990 and ended on 16 June 1992 when the Supreme Court refused
the applicant leave to appeal. Thus the length of the proceedings was
approximately two years and one month.
The Commission reiterates that the reasonableness of the length
of proceedings must be assessed in the light of the circumstances of
the case and having regard to the following criteria: the complexity
of the case, the conduct of the parties and that of the authorities
dealing with the case (Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission notes that the case was not complex as regards
either the legal issues or the facts. It notes that the original
proceedings in the District Court lasted approximately one year and the
proceedings after that, i.e. in the Court of Appeal, in the District
Court, again in the Court of Appeal and finally in the Supreme Court,
lasted altogether one year. Taking into account that the case was heard
at five instances the Commission, making an overall assessment of the
circumstances of the case, considers that a reasonable time was not
exceeded.
Summing up, the Commission recalls that the guarantees in
paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are
specific aspects of the right to a fair trial set forth in paragraph 1
(Art. 6-1). The Commission has considered the particular aspects and
incidents invoked by the applicant and has found that these did not
assume such importance as to constitute a decisive factor in the
general appraisal of the trial. In addition 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 manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Finally, the applicant maintains that it was important for an
oral hearing to be held in the Court of Appeal.
In this respect the Commission notes Finland's reservation to
Article 6 (Art. 6) which reads, in so far as relevant, as follows:
"For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
1. proceedings before the Courts of Appeal, ... in
accordance with Chapter 26 Sections 7 and 8, ... of the
Code of Judicial Procedure ... "
The Commission observes that chapter 26, section 7 of the Code
of Judicial Procedure does not provide a right to an oral hearing in
appeal proceedings in the Court of Appeal.
The Commission further observes that under chapter 26, section 8
of the Code of Judicial Procedure a judgment of a court of first
instance cannot, as regards the charges brought against an accused, be
amended following a re-evaluation of the evidence without a re-hearing
having been held, unless the sentence imposed by the Court of Appeal
amounts only to fines or unless a re-hearing would clearly be
unnecessary. In the instant case the applicant's conviction was not
amended on appeal.
Under Finnish law the applicant was not entitled to a hearing
before the Court of Appeal. The Commission finds that Finland's
reservation covers this complaint.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
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