CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 17925/91                       by Asko KAUNISTO                       against Finland             The European Commission of Human Rights sitting in private on 8 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 14 January 1991 by Asko KAUNISTO against Finland and registered on 14 March 1991 under file No. 17925/91;           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 1959 and resident at Turku.   He is an agricultural technician by profession and is currently serving a prison sentence in the County Prison of the County of Vaasa.   Before the Commission he is represented by Mr.   Heikki Salo, a lawyer practising in Helsinki.           The facts of the case, as submitted on behalf of the applicant, may be summarised as follows.           On 31 May 1989 the City Court (raastuvanoikeus, rådstuvu- rätten) of Turku convicted the applicant of inter alia having assisted three prisoners in escaping from a prison on 3 July 1988 as well as of aggravated robbery of a bank on 14 July 1988 committed together with two of the prisoners, R.J.H. and O.   He was sentenced to six years' imprisonment.   The City Court held three hearings, on 5 April, 3 May and 31 May 1989.   Charges were presented against eight suspects for various offences committed in connection with and after the escape. The hearings were held in the County Prison of Turku.           At the first hearing parts of the pre-trial investigation record were read out by the Court.   Four witnesses were heard on behalf of the Public Prosecutor.   At the second hearing eight witnesses of the prosecution were heard.   On the robbery charges the City Court had inter alia regard to a statement by a bank employee, R.H., at the same time one of the complainants, that she had recognised R.J.H., O. and the applicant as the perpetrators (who were masked).   It further heard two witnesses, T. and Å., who stated that they had seen, at a distance, the applicant sitting in a car together with two other men in the vicinity two hours before the robbery.           At the third hearing two witnesses were heard on behalf of the defence.   According to witness S. the applicant could not have been in the locality of the robbery at the time when it took place.           In its judgment the City Court found inter alia that   "(h)aving regard to what has otherwise emerged in the case the City Court does not find the statement of witness S., who has been called as a witness only at this stage of the [proceedings], plausible."           The applicant's appeal to the Court of Appeal (hovioikeus, hovrätten) of Turku was rejected on 5 April 1990.   The Court of Appeal considered it "credible" (uskottava) that R.J.H., O. and the applicant had been together from 3 to 20 July 1988 and that on 14 July 1988 they had stolen a car and committed the robbery.   The applicant's request for a hearing was rejected by the Court, which stated inter alia:   "The case has been considered at three hearings [before the City Court] and the parties have then had a possibility to present their submissions.   There is no need to hear the witnesses proposed by O. and Kaunisto [inter alia S., R.H., T. and Å.] before the Court of Appeal, as their statements do not affect the finding in the case..."           The applicant requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen), invoking inter alia Article 6 paras. 2 and 3 (d) of the Convention.   He complained that no weight had been given to the statement of witness S. and that, in contravention of the presumption of innocence, the burden of proof had been resting with him.   He further requested a hearing.           Leave to appeal was refused by the Supreme Court on 17 July 1990.           Before the domestic courts the applicant was assisted by his present representative before the Commission.     COMPLAINTS           The applicant complains of a violation of Article 6 para. 1, in conjunction with paras. 2 and 3 (d) of the Convention.   Although the prosecution presented no evidence to the contrary, the City Court did not regard the statement of witness S. as plausible, as it had not been presented to the Court at an earlier stage of the trial.   Thus, he had no effective right to examine witness S.   It is implied in the presumption of innocence that the burden of proof rests with the prosecution and that the accused may present evidence at any stage during the trial.   Finnish law does not provide that evidence must be presented to a court at a specific hearing.   Even if the accused chooses to remain silent during the proceedings this fact should not be interpreted to his detriment.   In the present case, the applicant did not even have a possibility to examine the witness at an earlier stage, as the two preceding hearings were devoted to the reading out of the pre-trial investigation record and the examination of the witnesses of the prosecution.   It would have been the Supreme Court's duty under the Convention to see to it that the procedural error in question be rectified.     THE LAW           The applicant complains that, as the City Court gave no weight to the statement of witness S. having regard to the late stage of the trial at which it was presented, he was denied the effective right to present evidence in support of his innocence.   He alleges a violation of Article 6 paras. 1, 2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the Convention, which read, insofar as they are relevant:           "1.      In the determination of ... any criminal charge         against him, everyone is entitled to a fair .... hearing ...         by an independent and impartial tribunal established by         law...".   "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:     ... 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 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 later 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).   (a)      In the present case the proceedings before the courts of the first and the second instance terminated with the judgment of the City Court of Turku on 31 May 1989 and the judgment of the Court of Appeal of Turku on 5 April 1990, respectively, 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.           It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   (b)      The Commission has next considered the application insofar as it may be regarded as pertaining to the Supreme Court's decision of 17 July 1990.   The Commission observes that the applicant does not complain about the proceedings before the Supreme Court as such, but about the failure of that court to rectify the alleged procedural error made by the City Court.   In view of the fact that the proceedings before the last-mentioned court terminated before the entry into force of the Convention with regard to Finland, no obligation for the Supreme Court to act in the manner required by the applicant can be inferred from the Convention.   Even assuming that Article 6 (Art. 6) applies to the leave to appeal proceedings before the Supreme Court the Commission therefore finds no appearance of any violation of the provisions invoked by the applicant.           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.             For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)