FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29728/96
by Tapio VAHTERA
against Finland
The European Court of Human Rights (Fourth Section) sitting on 16 December 1999 as a Chamber composed of
MrA. Pastor Ridruejo, President,
MrM. Pellonpää,
MrL. Caflisch,
MrJ. Makarczyk,
MrV. Butkevych,
MrJ. Hedigan,
MrsS. Botoucharova, judges,
andMrV. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 September 1995 by Tapio Vahtera against Finland and registered on 6 January 1996 under file no. 29728/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 19 March 1998 and the observations in reply submitted by the applicant on 9 June 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1957 and living in Hyvinkää, Finland. He is represented before the Court by Mr Jarkko Jaatela, a lawyer practising in Helsinki
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 1992 A bought the share capital of a company in which B and C also came to work. The applicant had no official function in the company, but it appears that in certain matters he acted as an adviser.
On 1 June 1992 the company applied for a company credit card. This was granted on 4 June 1992, inter alia, on the condition that the card was not to be used to pay for the personal purchases of the cardholder. The credit-card company, however, closed the account on 15 July 1992 as by then the card had been used for purchases worth 104,568.30 Finnish marks (FIM) that allegedly had no connection with the business activities of the company.
On the basis of these alleged irregularities the police commenced an investigation into the activities of A, B and C. A was interrogated by the police from 21 to 24 September 1992 and on 19 and 28 October 1992. It appeared that the irregularities related in particular to a trip to Thailand, involving A, B and C as well as the applicant, and to a car rental. During the police interrogations A repeatedly incriminated the applicant who was not at that moment under investigation. It appears that also B and C incriminated the applicant in their statements to the police.
Following the police investigations charges of fraud were brought against A, B and C. By judgment of 13 January 1993 A and B were found guilty of the charges brought against them by the Helsinki City Court (raastuvanoikeus, rådstuvurätt; as from 1 December 1993 the Helsinki District Court, käräjäoikeus, tingsrätt). By judgment of 2 June 1993 the same court convicted C for similar offences. The applicant did not in any way participate in these proceedings.
It appears that the police also commenced an investigation into the applicant’s activities vis-à-vis the credit card fraud. He was interrogated for the first time on 15 June 1993, but denied all charges and any personal involvement. The reports of the police investigations concerning A, B and C were presented to the applicant during this investigation.
Court proceedings against the applicant opened on 13 October 1993 in the Helsinki District Court where he was charged with having committed two frauds, together with A, B and C, in connection with the trip to Thailand and a fraud in connection with the car rental. It appears that the prosecution intended to rely on the statements made by A, B and C during their own trials, whereas the applicant called A to testify. During his testimony before the District Court on 13 October 1993 A withdrew his previous statements concerning the involvement of the applicant in the frauds and stated that the applicant had not been involved in them. Confronted with his previous statements made in connection with his own trial A maintained, primarily, that, because of his excessive use of alcohol at that time, he had been in a bad physical condition during his detention and that he had not read the documents carefully enough.
Following the examination of A, and after the applicant had had the opportunity to comment thereon, the prosecutor requested an adjournment in order to call B and C to testify. The case was accordingly adjourned until 7 December 1993.
The trial continued on 7 December 1993 when the prosecution announced that it had not been possible to call B and C. In these circumstances the applicant requested the District Court to reject as evidence B’s and C’s previous statements made during their own trials since he had had no possibility of challenging that evidence. Furthermore, he stated that if the prosecutor wanted to rely on their statements, they should be heard in this trial. It appears that the District Court dismissed the request and pronounced its judgment on the basis of the available material. In its judgment of 7 December 1993 the District Court stated, inter alia, the following:
(translation from Finnish)
“Imputed Offences
Point 1
[The applicant] has, on 4 June 1992, in complicity with ... A, B and C and in order to gain unjust benefit, by concealing their inability and unwillingness to pay debts, deceived [the credit-card company] to induce it to grant a credit card to [the company] ..., A acting as representative of [the company]. By using the credit card between 9 June and 15 July 1992 for purchases worth FIM 104,568.30, they have caused loss to [the credit-card company].
...
Point 2
[The applicant] has, on 25 June 1992, in complicity with ... A, B and C and in order to gain unjust benefit, by concealing their inability and unwillingness to pay debts, deceived [the travel agency] to obtain four tickets to Thailand worth FIM 17,180, C acting as representative of [the company]. By failing to pay for the tickets, they have caused loss to [the travel agency].
Point 3
[The applicant] has, on 3 August 1992, in Helsinki, in complicity with another person and in order to gain unjust benefit, deceived [the car rental company] to obtain delivery of [a car] on the basis of a car rental contract valid until 17 August 1992, by falsely representing him as representative of [the company]. By failing to return the car, he has caused loss to [the car rental company].
Evidence and Its Evaluation
General Matters Concerning the Activities of [the company]
...
A has stated that ... [the applicant] had presented various ideas, which A had been willing to realise in the name of [the company]. The decision to apply for different credit cards for [the company] was made in the meeting between A, B, C and [the applicant]. ... The trade in Estonia and in Thailand had been [the applicant’s] idea.
...
C has stated that ... A’s statement concerning their mutual decision to apply for the credit cards is apparently accurate. He has stated that the cards were meant for normal living expenses. ...
Point 1
On 1 June 1992, a company credit card was requested by [the company]. In the application for the credit card the share capital of the company was announced to be FIM 15,000 and the annual turnover to be FIM 7,000,000. The number of employees was said to be seven.
[The credit-card company] on 4 June 1992 granted a credit card to [the company]. At the time of the granting of the credit card, there were no remarks on the credit status information of the company. According to the terms of the credit card contract, the company credit card was not to be used for buying current assets for the company or to pay for the personal purchases of the cardholder. There have been purchases with the credit card worth FIM 104,568.30 within the period from 9 June 1992 to 15 July 1992. Most of these purchases had no connection with the business activities of [the company] but were personal purchases of the cardholder(s). Purchases worth FIM 62,844.56 of the above mentioned purchases were made in Thailand within a two week period. As the credit card has been used against the terms of the credit card contract, [the credit card company] has closed the credit account ... . All the credit card bills remain unpaid, except the annual fee for the credit card and the invoicing charge.
A has stated that in the application for the credit card the annual turnover was announced to be FIM 7,000,000 because the company intended to import plenty of goods from Thailand and to sell them in Finland with good profit. The credit card was obtained just for the trip to Thailand. The trade with the Far East did not turn out to be a profitable business. B, C and [the applicant] had been in Thailand with him. Before the trip, the credit card had been used in Finland for purchases worth about FIM 20,000. According to A, the credit card had been used for entertainment and drinking alcohol and for buying new clothes, in which all four men had participated. A had not been in possession of the credit card all the time but it had also been at the office of the company. B and C might have used the card, as well as any other outsider who had visited the office. In Thailand the credit card had been used a lot for entertaining and for purchasing clothes and jewellery. A has stated that in Thailand the credit card was mainly in his possession. The purchasing of goods for the company did not materialise, as [the credit-card company] had already closed the credit account. ... According to A, the credit card had been used in Finland by another person before the trip in the amount of several thousand Finnish marks. A has confessed that he had paid for B, C and [the applicant’s] trip and for their expenses in Thailand with the credit card. A has denied his guilt in this case. The trip to Thailand was meant to be a normal business trip, for the benefit of the company.
B has stated that he had never used the credit card himself. B has admitted that he had been in Thailand with A, C and [the applicant] and that A had paid for the trip and for his expenses there with the above mentioned credit card. The importation of clothes from Thailand had failed as [the credit-card company] had closed the credit account. The company had not been able to pay for the bills later, as the credit card company had closed the credit. B has maintained that [the credit-card company] had failed to honour the terms of the credit card contract. B has stated that he had had FIM 4,000 of his personal funds with him on the trip.
As regards point 1, the District Court finds that according to concurring statements made by A, B and C it has been proved that, together with [the applicant], they decided to apply for the credit card. Who formally signed the application for the credit card, or the credit card contract, is of no importance. [The company] has not possessed any assets or income subsequent to its purchase in April 1992. The only action of the company was to obtain the credit card and later, to purchase goods with the credit. All the goods obtained were to the benefit of A, B, C and [the applicant] and not to the benefit of the company. The planned criminal nature of the action in this matter is shown by the fact that the company with good credit status was bought and that, by using the credit status, the company credit card was obtained. The company credit card was then used continuously until the credit-card company closed the credit. ...
The District Court finds that A, B, C and [the applicant] had no intention to pay for the credit card bills when they applied for the credit card and, during its use, they were aware of the insolvency of the company and of their own inability to pay for the bills. The goods purchased with the credit card were of such a nature as to have no connection with the business of the company. The District Court finds that the above-mentioned conduct, with regard to its method and meaning, fulfils the essential requirements of establishing fraud.
Point 2
On 25 June 1992 four return-tickets to Thailand were ordered in the name of [the company]. The tickets ordered from [the travel agency] were those of A, B, C and [the applicant]. The price of the tickets, FIM 17,180, has not been paid. The order was placed by C.
A has stated that the trip to Thailand was made in the name of [the company] and that it was supposed to be a business trip paid by the company. A has stated that [the applicant] had been on the trip because he spoke foreign languages, C had been there because he understood the trade and B had been there to support them with all kinds of things. A has stated that he had believed that the trip had been paid with the company credit card.
B has stated that the trip was made in the name of [the company] and at its expense. A, C and [the applicant] had participated in addition to himself. A had purchased the tickets and the plan was to import clothes from Thailand to Finland. The bills accumulated through the credit card had not been paid because the business had not materialised and the company had not earned any profit. B has maintained that the responsibility for the trip remained with [the company] as it had been a business trip.
The District Court finds that, as described above, A, B, C and [the applicant] have taken part in the trip to Thailand, even though they were aware of the insolvency of the company and of their own inability to pay for the expenses, and with no intention to pay for the travel tickets. Taking into account what has been submitted about what had occurred during the trip, the District Court does not find it established that it had been a business trip which could have contributed to the income making it possible to pay for the trip.”
On the basis of the above findings the District Court found the applicant guilty of aggravated fraud (point 1) and two frauds (points 2 and 3) and sentenced him to thirteen months’ imprisonment.
On 6 January 1994 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt). He complained that the District Court had convicted him on the basis of evidence obtained and assessed during the earlier proceedings involving A, B and C in which he had not been a party and in which he had not been represented. He also complained that he was given no opportunity to challenge the evidence against him as the evidence had been given by convicted persons who had incriminated him at the time of their own trials. He also recalled that the police had interviewed him for the very first time only after the other persons had already been convicted. The only evidence concerning him was A’s statement as a witness of 13 October 1993, but that statement did not, in his opinion, prove that he had committed the crimes he was charged with. He maintained that the statements made in the previous court proceedings could not be used as evidence against him and that the charges should have been rejected, as there had been no evidence against him.
On 2 March 1995 the Court of Appeal upheld the judgment of the District Court. The Court of Appeal reasoned its judgment as follows:
(translation from Finnish)
“As regards points 1 and 2, A has in the interrogations conducted by the police from 21 to 24 September 1992 and on 19 and 28 October 1992 given the explanations set out in the District Court judgment. On 25 November 1992 A submitted the same explanations during the City Court hearing, stating, inter alia, that applying for the company credit cards was decided in a meeting in which A, B, C and [the applicant] had participated. On 13 October 1993, A was heard before the District Court during the proceedings of the present case in the presence of [the applicant]. There A stated that [the applicant] had not participated in the meeting in which it was decided to apply for the company credit card and that [the applicant] had paid him FIM 4,000 in cash in order to pay for his part of the travel expenses. The Court of Appeal does not find A’s altered statement to be credible. No other evidence has been produced to support the allegation that [the applicant] had paid for his trip to Thailand to A. Therefore, the Court of Appeal finds, on the basis of A’s statements in the police investigation, that [the applicant] is guilty of the charges brought against him in points 1 and 2.
[The applicant] has admitted that he had participated in renting the car and that he had later called the car rental company, asking for the rental period to be extended. A has told the police that the car had been put at [the applicant’s] disposal. On 13 October 1993 A told the District Court that he did not know at whose disposal the car had been put. The Court of Appeal does not find A’s altered statement as regards point 3 to be credible. Therefore the Court of Appeal finds [the applicant] guilty of fraud under point 3.”
On 28 April 1995 the applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal. He stated that in the District Court and in the Court of Appeal he had been convicted on the basis of evidence obtained and assessed during the earlier proceedings in which he had not been a party and in which he had not been represented. He also stated that he was given no opportunity to challenge the evidence against him, as the statements had been given by convicted persons who had incriminated him at the time of their own trial. The only evidence in his own trial was the evidence given by A on 13 October 1993 in the District Court. In his statement A did not, however, incriminate him. The charges should, accordingly, have been rejected, as there was no evidence against him.
On 19 May 1995 the Supreme Court refused to grant leave to appeal.
B.Relevant domestic law
According to Chapter 17, Section 18, Subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time, a person who had earlier been convicted of the same offence could not be heard as a witness. The courts had no possibility of using any force to cause such a person to give evidence at a court hearing.
COMPLAINT
The applicant complains that he had no possibility of challenging the evidence against him and that he was convicted solely on the basis of evidence obtained and assessed during earlier proceedings in which he was not involved at all. He also maintains that the statements were given by convicted persons who had incriminated him at the time of their own trial. He invokes Article 6 § 3(d) of the Convention.
PROCEDURE
The application was introduced before the European Commission of Human Rights on 14 September 1995 and registered on 6 January 1996.
On 15 January 1998 the Commission decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 19 March 1998. The applicant replied on 9 June 1998.
On 15 September 1998 the Commission granted the applicant legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains that he had no possibility to challenge the evidence against him and that he was convicted solely on the basis of evidence obtained and assessed during earlier proceedings in which he was not involved at all. He also maintains that the statements were given by earlier convicted persons who had incriminated him during their own trials. Article 6 of the Convention, to which he refers, reads in its relevant parts as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a]... tribunal ... .
...
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.
...”
1.The Government’s preliminary objection
The Government submit that the application should be rejected for failure to exhaust domestic remedies as required by Article 35 (former Article 26) of the Convention as the applicant did not himself call on the relevant persons, namely B and C, to be heard before the District Court, nor did he make any application to the Court of Appeal for such evidence to be heard.
The applicant disputes the Government’s view. He emphasises that the burden of proof in a criminal matter lies with the prosecution. Furthermore, he maintains that he had denied the charges as well as the use of B’s and C’s statements as evidence against him before the domestic courts.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Under that Article normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The Court has recognised that Article 35 must be applied with some degree of flexibility and without excessive formality, but it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It also requires that the complaints made before the Court should have been made to those same courts, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law, and further, that any procedural means that might prevent a breach of the Convention should have been used (see, e.g., the Cardot v. France judgment of 19 March 1991, Series A, no. 200, p. 18, § 34, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210-1211, §§ 65, 66 and 69).
The Court notes that, in the present case, the applicant called the co-defendant A to give evidence before the District Court. Furthermore, he disputed the possibility to use B’s and C’s statements as evidence if they were not heard in his trial. In his submissions to the Court of Appeal and the Supreme Court, the applicant maintained that the statements given by B and C during their own trials could not be used as evidence against him and that A had not said anything to incriminate him when heard during the applicant’s trial. The applicant also stated that he had been convicted on the basis of evidence obtained and assessed during earlier proceedings to which he was not a party and in which he was not represented, and that he had not been given an opportunity to challenge the evidence against him, as the statements were given by persons who had been convicted earlier and who had incriminated him at the time of their own trials.
The Court notes that in his above-cited submissions to the domestic courts the applicant, at least in substance, raised the complaint he makes now. By doing so he clearly provided those courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 35, namely the opportunity of preventing or putting right the violations alleged against them (see, e.g., the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 27, § 72, and the Saïdi v. France judgment of 20 September 1993, Series A no. 261, p. 55, § 40). In these circumstances, the Court considers that it was not necessary for the applicant explicitly to request evidence from persons who had incriminated him to be heard in order to comply with the requirement of the exhaustion of domestic remedies, even assuming that this would have been possible (see the above-mentioned Saïdi judgment, pp. 54-55, §§ 39 and 40, and cf. the above-mentioned Cardot judgment, pp. 18-19, § 35).
The Court therefore concludes that the application cannot be rejected for failure to exhaust domestic remedies.
Concerning Article 6 §§ 1 and 3(d) of the Convention
The Government submit that the application should be declared inadmissible as being ill-founded.
As regards the proceedings before the District Court, the Government note that according to the prevailing interpretation of the provisions of the Code of Judicial Procedure, a person who had earlier been convicted of the same offence could not be heard as a witness. Therefore it was not possible to use force to make such a person attend a court hearing. Thus the authorities had no means of bringing A, B and C to a court hearing against their will.
The Government emphasise that the applicant also had a possibility to call witnesses himself, and he did call A to be heard in the court hearing and interrogated him. The applicant could have called B and C to testify as well, but he did not use this possibility. In addition, the earlier statements of B and C were available in the court hearing and the applicant had a possibility of acquainting himself with these statements and their contents. Thus it was possible to discuss the relevance of these statements as evidence in the hearing. The Government note furthermore that they were not the only evidence adduced in the present case.
As to the proceedings before the Court of Appeal, the Government emphasise that that court found sufficient evidence to prove that the applicant was guilty, including not only his own statements and the written evidence adduced during the proceedings, but also the statements made by A during the investigations and before the District Court. The Government observe that there were no obstacles for using the statement of A made during the pre-trial investigations because A was heard also in the oral hearing before the District Court, where the applicant had a possibility to put questions as to the reliability of A’s statement. The statement which was earlier made by A during the investigations and in the court proceedings concerning himself was also available in the court hearing.
The Government further submit that A was called upon by the applicant to testify before the District Court. A also appeared and, accordingly, the applicant and his lawyer had the opportunity of putting questions to him. Furthermore, it is obvious that the prosecutor made efforts to have B and C heard before the District Court, but these attempts failed due to the impossibility, under the law in force at the relevant time, to force them to appear in court. Thus the authorities had not been negligent in their efforts to have B and C heard before the District Court. As it was impossible for the prosecutor to secure B’s and C’s attendance at the hearing, it was open to the national court, subject to the rights of the defence being respected, to take into account the statements obtained by the police, particularly because it could consider the statements to be corroborated by other evidence before it.
The Government also submit that, in the present case, the judgment of the Court of Appeal was based, not only on the statement A gave to the police, but also on the applicant’s own statements and the written evidence adduced during the proceedings, as well as the statements which were made by A when he was heard before the District Court and which were considered incredible. The Government maintain that the applicant’s conviction before the Court of Appeal was not based ‘mainly’, ‘to a decisive extent’ or ‘to a large extent’ on A’s statement to the police, but on an assessment of a sufficiently significant amount of corroborative evidence.
The Government finally state that also in connection with all three indictments examined by the District Court, there was other evidence in addition to the statements to the police given by A, B and C, and that A was heard before that court. Moreover, in respect of point 3, the statements to the police by B and C were not used at all.
The applicant contests the Government’s views. He firstly maintains that his conviction on all the three points was based on previously issued testimony of A, B and C obtained and assessed during proceedings in which he had not been at all involved. This appears from the reasoning of the District Court’s judgment, to which the Court of Appeal also made reference, under the subheading “General Matters Concerning the Activities of [the company]”, where the court referred to the testimony of all the co-defendants. In fact, the statements of B and C were of crucial importance for the applicant’s conviction.
The applicant emphasises that the burden of proof in a criminal case lies with the prosecution. Therefore, it was not the applicant’s duty to call B and C to testify, but the prosecutor’s obligation to furnish evidence for his charges. Moreover, the prosecutor did not even refer to the testimonies of B and C at the hearing of the District Court on 7 December 1993. The long account on the evidence and its evaluation, e.g. in connection with the company, was not based on material brought up by the prosecutor in that trial but on material which had been brought up in the earlier trials of B and C.
The applicant states that the importance of hearing B and C during his trial was enhanced by the fact that the District Court and the Court of Appeal took the view that the testimony given by A at the District Court’s hearing was not credible. It would have been possible to assess this credibility by hearing B and C in his case as well.
The applicant concludes that it was not acceptable to use the statements given in the police investigations as evidence in the present case, as he had not at any stage been able to challenge those statements.
As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court examines the complaint under Article 6 §§ 1 and 3(d) taken together (see, e.g., the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, pp. 469-470, § 66).
The Court first recalls that its task is not to examine whether the applicant was guilty of the offences of which he was convicted. The admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair (see, e.g., the above-mentioned Doorson judgment, p. 470, § 67).
All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with Article 6 §§ 1 and 3(d), provided that the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (see, e.g., the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 20, § 41, and the above-mentioned Saïdi judgment, p. 56, § 43).
The Court notes that, in the present case, A, B and C were not regarded as witnesses under Finnish law. However, the Court takes the view that, for the purposes of Article 6 § 3(d), they should be regarded as witnesses – a term to be given an autonomous interpretation (see, e.g., the Isgrò v. Italy judgment of 19 February 1991, Series A no. 194, p. 12, § 33).
The Court recalls that the police investigations against A, B and C and their trials before the City Court took place before the applicant was interrogated by the police for the first time. The applicant was, thus, not involved in the proceedings against A, B and C, and had, therefore, no opportunity to question them at that stage. The reports of the police investigations concerning A, B and C were presented to the applicant during the investigation concerning his participation in the alleged offences. Thus, he was afforded the possibility of acquainting himself with the contents of these statements.
During the applicant’s trial before the District Court A gave evidence. The applicant was able to examine him and to comment on the testimony he gave. B and C were not heard in the District Court or at any other stage of the applicant’s trial. At the first hearing on 13 October 1993, the prosecutor expressed his intention to ask B and C to give evidence before the District Court. At the next hearing, however, he stated that it had not been possible to call B and C to the court. The Court notes that it is not clear why B and C did not testify, though it is evident that according to domestic law the authorities did not have means to bring them to the court hearing against their will.
The Court notes that in its judgement, insofar as points 1 and 2 are concerned, the District Court referred to the statements given by A, B and C in the police investigations. As regards point 3, the evidence relied on was not stated clearly. On the other hand, the Court of Appeal, after written proceedings, based its judgment on the statements given by A to the police and, as regards point 3, also on the applicant’s own statements. The Court of Appeal, moreover, stated that it did not find A’s altered statement given before the District Court credible.
As to the applicant’s complaint that he was convicted on the basis of evidence which he had no possibility to challenge and insofar as the statements made by A are concerned, the Court notes that the applicant had the possibility of acquainting himself with A’s statements to the police. Furthermore, he was able to question A and to challenge his statements at the hearing before the District Court. Therefore, there is no indication that the applicant was denied the possibility of examining A in conformity with Article 6 §§ 1 and 3(d). Furthermore, the Court recalls that it is in principle for the national courts to assess the evidence before them. There is no indication that by considering the original statements of A to be credible, the national courts acted arbitrarily or otherwise exceeded their margin of appreciation in this respect.
As regards the statements given by B and C to the police and during their own trials, the Court notes that the applicant was not confronted with these witnesses at any stage of the proceedings. It does not appear from the submissions filed to the Court whether the authorities made a sufficient effort to organise such a confrontation. Furthermore, it is unclear whether the prosecutor, after all, referred to these statements as evidence. Yet the District Court based its judgment partly on them. However, B’s and C’s statements were not the only evidence on which the District Court’s judgment was based. Moreover, the Court of Appeal found the evidence given by A and the applicant himself sufficient for the conviction. In these circumstances, the Court finds that the domestic courts’ failure to hear evidence from B and C was not contrary to the applicant’s right to a fair trial guaranteed by Article 6 §§ 1 and 3(d) taken together.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent BergerAntonio Pastor Ridruejo
RegistrarPresident
Full & Egal Universal Law Academy