CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 28941/95                       by Christian LUPANDER                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 8 September 1995 by Christian Lupander against Finland and registered on 18 October 1995 under file No. 28941/95;         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 1961 and resident in Helsinki, Finland. When lodging the application he was serving a prison sentence in the Vaasa County Prison (lääninvankila, länsfängelset). The applicant is represented before the Commission by Mr Heikki Salo, a lawyer practising in Helsinki.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The Public Prosecutor indicted the applicant before the Helsinki City Court (raastuvanoikeus, rådstuvurätten) on charges of, inter alia, two counts of aggravated embezzlement committed on 28 March 1989 and 15 January 1990, respectively, and two counts of aggravated fraud committed on 13 December 1989 and 13 March 1990.         According to the charges of aggravated embezzlement, the applicant and a co-defendant, in order to obtain financial benefit for themselves, had used unlawfully the funds they had acquired on the basis of two sets of contracts with a finance company concerning certain stock trades, in both cases to the amount of approximately 5,000,000 Finnish marks (FIM), and thereby failed to fulfil their liability of account as required by the contracts. The Prosecutor considered that the offences were aggravated in particular because large amounts of money were involved.         Furthermore, according to the charges of aggravated fraud, the applicant and a co-defendant had by giving false information deceived a finance company into financing purchases of non-existing stocks, in both cases to the amount of FIM 5,000,000, in order to obtain unjustified financial benefit for themselves or a third party. In doing so they had caused the company a loss equal to this amount since the financing was unsecured. The Prosecutor considered that the offences were aggravated in particular because considerable financial benefit had been sought.         Chapter 29, section 1 of the Penal Code (rikoslaki, strafflag 39/1889), as in force at the time the acts were committed, provided as follows:         (Translation)              "A person who appropriates the movable property of       another which is in the possession of the offender shall be       sentenced for embezzlement to imprisonment for a maximum       period of two years or to a fine.              The same applies to a person, who has received funds       on account by way of a commission or in a similar manner,       and who unjustifiably uses the said funds or funds which       have taken their place in order to obtain financial benefit       for himself and in this way causes a situation in which the       liability of account is not fulfilled."         Chapter 29, section 2 of the Penal Code, as in force at the above-mentioned time, read as follows:       (Translation)         "If embezzlement is committed by using faulty accounts       prepared with a view to perpetrating this offence or by       taking advantage of the offender's responsible position or       if the act is directed at very valuable property or a large       amount of funds and the embezzlement is to be deemed       aggravated in the above-mentioned or other cases having       regard to the circumstances which led to the crime and       appear thereof as a whole, the offender shall be sentenced       for aggravated embezzlement ..."         The above-mentioned provisions were amended by Act No. 769/1990 which entered into force on 1 January 1991. Chapter 29, section 1 of the Penal Code was replaced by chapter 28, section 4, which, as far as relevant, reads as follows:         (Translation)         "Embezzlement. A person who appropriates assets or other       movable property of which he is in possession shall be       sentenced for embezzlement to a fine or imprisonment for a       maximum period of one year and six months.       ...       A person who has received funds on account through a       commission or in a similar manner, and who unjustifiably       causes a situation in which the liability of account is not       fulfilled at the time agreed or otherwise required, by       using the said funds or funds which have taken their place       or by otherwise acting in a similar manner, shall also be       convicted of embezzlement."         The above-mentioned chapter 29, section 2 of the Penal Code was replaced by chapter 28, section 5 which, as far as relevant, provides as follows:         (Translation)         "Aggravated embezzlement. If in the embezzlement       1) the object is very valuable property or a large amount       of assets,       2) particularly significant loss is caused to the victim of       the offence, in view of the victim's circumstances, or       3) the offender takes advantage of his particularly       responsible position       and the embezzlement, also when assessed as a whole, is to       be deemed aggravated, the offender shall be sentenced for       aggravated embezzlement to imprisonment for a minimum       period of four months and a maximum period of four years."         Chapter 36, section 1 of the Penal Code, as in force at the time the acts were committed, read in so far as relevant as follows:         (Translation)         "A person who, in order to obtain unlawful material benefit       for himself or another person, causes another to suffer       loss of property or pecuniary loss by presenting misleading       information, or by distorting or concealing facts, brings       about or maintains an error... shall be sentenced for fraud            to a fine or imprisonment for a maximum period            of two years, or, if the circumstances are            particularly aggravating, ... for a maximum            period of four years."         The above-mentioned provisions concerning fraud were also amended by Act No. 769/1990. Chapter 36, section 1, subsection 1, as amended, reads as follows:         (Translation)         "Fraud. A person, who in order to obtain unlawful financial       benefit for himself or another person or in order to harm       another, deceives another or takes advantage of an error of       another so as to have this person do something or refrain       from doing something and in this way causes financial loss       to the deceived person or to the person over whose benefits       this person is able to dispose, shall be sentenced for       fraud to a fine or imprisonment for a maximum period of two       years."         Chapter 36, section 2 of the Penal Code, as in force at the time the applicant was convicted, provides for aggravated fraud, in so far as relevant, as follows:         (Translation)         "Aggravated fraud. If the fraud       1) involves the seeking of considerable benefit, [or]       2) causes considerable or particularly significant loss,       ...       and the fraud, also when assessed as a whole, is to be       deemed aggravated, the offender shall be sentenced for       aggravated fraud to imprisonment for a minimum period of       four months and a maximum period of four years."         After the proceedings had started the Prosecutor appeared in a television programme where he was interviewed in connection with the domestic proceedings in the present case. The Prosecutor commented on what had been discovered in the police investigation and with what the applicant was charged.         In the course of the proceedings the City Court heard the victims of the crimes and the defendants as regards the above-mentioned charges. The applicant pleaded not guilty claiming in particular, as regards the two counts of aggravated embezzlement, that he had later fulfilled the liability of account and, as regards the two counts of aggravated fraud, that the acts had not caused material loss as required by the relevant provision. He contended that these acts did not constitute criminal offences at the time they were committed and that, therefore, the law in force at that time ought to be applied. Furthermore, he considered that the fairness of the trial had been affected by the Prosecutor's television appearance.         On 18 October 1993 the City Court pronounced judgment. The City Court found it established, inter alia, that as described in the charges, the applicant had broken the contracts he had made concerning the financing of the stock trades and used unlawfully the relevant funds thereby failing to fulfil the terms of the contracts as regards rendering of accounts in accordance with them. In doing so he had obtained financial benefit. As regards one of the acts the City Court considered that both the law in force at the time the acts were committed and the law in force at the time judgment was pronounced were applicable, the latter being less severe.         Furthermore, the City Court found that the applicant, as described in the charges in order to gain unlawful financial benefit for himself and another person, had committed fraud and that both the law in force at the time the acts were committed and the law in force at the time judgment was pronounced were applicable, the latter being less severe.         Applying the law in force at the time judgment was rendered, the City Court convicted the applicant of, inter alia, two counts of aggravated embezzlement and two counts of aggravated fraud and sentenced him to a total of two years and three months' imprisonment and ordered him to pay damages.         On 16 November 1993 the applicant, among others, appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten) renewing his earlier submissions and requesting, inter alia, that he be acquitted or his sentence be reduced. He also requested that an oral hearing be held in the Court of Appeal.         On 8 September 1994 the Court of Appeal upheld the judgment of the City Court as far as relevant without holding an oral hearing.         Subsequently, the applicant requested access to the memorandum of the Referendary of the Court of Appeal. He was granted access only to the public part thereof but denied access to the part which is regarded as a part of the deliberations in camera of the Court of Appeal.         On 6 November 1994 the applicant requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) referring, inter alia, to the choice of applicable law and the influence of the Prosecutor's above-mentioned television interview about the trial. The applicant demanded acquittal, reduction of sentence or a return of the case to the Court of Appeal.         On 9 March 1995 the Supreme Court refused the applicant leave to appeal.     COMPLAINTS   1.     The applicant complains that he was denied a fair trial. He maintains that the courts failed to elaborate sufficient reasoning for their judgments. He alleges that it does not appear from the judgments on what grounds the courts considered that his acts fulfilled the definitions of aggravated embezzlement and fraud committed under particularly aggravating circumstances as prescribed in the relevant national provisions in force at the time the acts were committed. The applicant also complains that the Court of Appeal refused him access to that part of the Referendary's memorandum   which is regarded as a part of its deliberations in camera and that the refusal on its part prevented him from knowing the reasons for the judgment of the Court of Appeal. The applicant invokes Article 6 of the Convention. 2. Furthermore, the applicant complains that his right to be presumed innocent was violated. He maintains that the courts failed to apply the rule of in dubio pro reo and that the Prosecutor after the first session in a television programme took a stance to the applicant's guilt even as regards acts for which he was never indicted. He contends that the courts failed to take measures as regards the Prosecutor's behaviour. In this connection the applicant invokes Article 6 para. 2 of the Convention.   3.     The applicant also complains that he was held guilty of aggravated embezzlement and aggravated fraud on account of acts which did not constitute criminal offences under national law in force at the time he was convicted. He claims that the acts which were considered to be aggravated frauds did not cause material loss. He contends that the courts applied the principle of the more lenient law to his detriment. The applicant invokes Article 7 of the Convention.     THE LAW   1.     The applicant complains that he was denied a fair trial. He claims that the courts failed to elaborate sufficient reasoning. The applicant also complains that the Court of Appeal refused him access to part of the Referendary's memorandum. He invokes Article 6 (Art. 6) of the Convention which reads as far as relevant:         "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 by an independent and impartial tribunal       established by law. ..."         In the applicant's   opinion, the courts were obliged to determine whether the provisions in force at the time the acts were committed applied to them in order to be able to conclude that the less severe provisions were the ones in force at the time the judgment was rendered. He alleges that, therefore, it ought to appear from the reasoning on what grounds the courts based their opinion that the acts constituted the offences at issue even though the interpretation allegedly deviated from the established interpretation.         The Commission recognises that failure to give reasons for a judgment may raise issues regarding the right to a fair hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. According to the Commission's case-law the effect of this provision is, inter alia, to place the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Eur. Court HR, Kraska v. Switzerland judgment of 19 April 1993, Series A no. 254-B, p. 49, para. 30). The Commission recalls, however, that it does not follow from this provision that the reasons given by a court should deal specifically with all points which may have been raised by one party; a party does not have an absolute right to require reasons to be given for rejecting each of his arguments (see e.g. Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, para. 61; No. 15384/89, Dec. 9.5.94, D.R. 77-B, p. 5; No. 16717/90, Dec. 9.1.95, D.R. 80-A, p. 24; No. 10938/84, Dec. 9.12.86, D.R. 50, p. 98).         In the present case the Commission observes that the City Court gave a reasoned judgment in which it found that the applicant had committed, inter alia, two counts of aggravated embezzlement and two counts of aggravated fraud. As indicated above, the Court of Appeal accepted the City Court's reasoning in so far as relevant and the Supreme Court refused leave to appeal. In these circumstances the Commission considers that the courts have given sufficient reasoning for the judgment.         As regards the complaint concerning the Referendary's memorandum, the Commission finds no indication that the refusal to disclose to the applicant the section which formed part of the deliberations of the Court of Appeal violated Article 6 (Art. 6) of the Convention.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that his right to be presumed innocent was violated. He claims that the courts failed to apply the rule of in dubio pro reo and that, in a television programme, the Prosecutor took a stance to his being guilty of certain crimes. He invokes Article 6 para. 2 (Art. 6-2) of the Convention which reads as follows:         "2.   Everyone charged with a criminal offence shall be       presumed innocent until proved guilty according to law."         As regards the application of the rule of in dubio pro reo, the Commission considers that the complaint involves the evaluation of evidence. The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or 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 or one of its Protocols (cf. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para. 45).         In the present case the Commission notes, as indicated above, that the City Court rendered a judgment in which it assessed the evidence and consequently reached a reasoned conclusion. The Court of Appeal accepted the City Court's judgment to the relevant part and the Supreme Court refused the applicant leave to appeal. The Commission has not found any appearance of a violation of the Convention or its Protocols as regards this particular aspect of the proceedings.         The Commission recalls that it has accepted that in certain cases a media campaign can be prejudicial to the fairness of a trial and involve the State's responsibility, particularly where it is sparked off by the state's organs (see e.g. No. 17265/90, Dec. 21.10.93, D.R. 75, pp. 76-77; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106 at p. 144 and the reference therein). The Commission considers, however, that account must be taken of the specific circumstances of the case and a balance be struck between the interests of the public and the media to be informed and the interest of the person suspected of an offence to the protection of the presumption of innocence. The question whether media publication is contrary to the presumption of innocence depends on the content of the material published (No. 10847/84, Dec. 7.10.85, D.R. 44, p. 238).         The Commission notes that while the present case was pending before the City Court the Prosecutor appeared in a television programme and made comments on the results of the police investigation and the charges. However, the Commission notes that while the Prosecutor explained why he was prosecuting the applicant he did not take an express stance to the applicant's guilt (cf. No. 14106/88, Dec. 6.12.91, unpublished). Considering that some publicity is inevitable in connection with an extensive criminal case involving considerable economic interests, the Commission is of the view that the television interview in question did not violate the presumption of innocence or render the proceedings otherwise unfair in breach of Article 6 (Art. 6) of the Convention.         The Commission also attaches importance to the fact that the applicant had the opportunity to challenge in the trial courts the comments the Prosecutor made in the television programme. The Commission has not found any appearance of a violation of the Convention or its Protocols as regards this particular aspect of the proceedings.         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.   3.     The applicant finally complains that he was convicted of acts which, when they were perpetrated, did not constitute offences under the law in force. He invokes Article 7 (Art. 7) of the Convention which reads as follows:         "1.   No one shall be held guilty of any criminal offence on       account of any act or omission which did not constitute a       criminal offence under national or international law at the       time when it was committed. Nor shall a heavier penalty be       imposed than the one that was applicable at the time the       criminal offence was committed.         2. This Article shall not prejudice the trial and       punishment of any person for any act or omission which, at       the time when it was committed, was criminal according to       the general principles of law recognised by civilised       nations."         According to the case-law of the Convention organs, Article 7 para. 1 (Art. 7-1) of the Convention prohibits the retrospective application of the criminal law to an accused's disadvantage and, more generally, embodies the principle that only the law can define a crime and prescribe a penalty and prohibits in particular the retrospective application of the criminal law where it is to an accused's disadvantage (see e.g. Eur. Court HR, Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 22, para. 52 and Eur. Court HR, G. v. France judgment of 27 September 1995, Series A no. 325-B, p. 38, para. 24 and S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, pp. 41-42, para. 35). The Commission has found that when there has been an amendment of the criminal law subsequent to the commission of an offence Article 7 (Art. 7) does not guarantee the right to have the most favourable criminal law applied even if the provision at issue had been repealed (see No. 7900/77, Dec. 6.3.78, D.R. 13, p. 70). Moreover, in the sphere of criminal law, Article 7 para. 1 (Art. 7-1) confirms the general principle that legal provisions which interfere with individual rights must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct (see e.g. No. 18892/91, Dec. 3.12.93, D.R. 76-A, p. 51 at p. 62 and the reference therein).         In the present case, the Commission notes that the applicant was convicted of, inter alia, two counts of aggravated embezzlement and two counts of aggravated fraud on the basis of the law in force at the time the judgment was rendered. The Commission considers, however, that at the time the acts were committed, the facts of which the applicant was accused fell within the scope of the provisions of the Penal Code on aggravated embezzlement and fraud committed under particularly aggravating circumstances. The relevant provisions were accessible and sufficiently foreseeable. Thus, there is no appearance of a violation of Article 7 (Art. 7) as regards the application of the law in force at the time the applicant was convicted which law the courts considered to be less severe.         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, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber