CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 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)