CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 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. 24738/94                       by Timo Taavetti KAUKONEN                       (subsequently Teemu Martti KAUKONEN)                       against Finland           The European Commission of Human Rights sitting in private on 8 December 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 5 July 1994 by Timo Taavetti Kaukonen (subsequently Teemu Martti Kaukonen) against Finland and registered on 1 August 1994 under file No. 24738/94;         Having regard to he reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 13 September 1996 and the observations in reply submitted by the applicant successor on 11 November 1996;         Having deliberated;         Decides as follows:   THE FACTS         The original applicant was a Finnish citizen, born in 1933. He died in January 1996. His son, Mr Teemu Kaukonen, a Finnish citizen born in 1960 and resident in Joensuu, has expressed his wish to pursue the application on his father's behalf. He is represented by Mr Heikki Salo, a lawyer in Helsinki.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         In January 1989 the District Court (kihlakunnanoikeus, härads- rätten) of Pyhäjärvi convicted L of assault, sentenced him to six months' conditional imprisonment and ordered him to pay damages. Subsequently L appointed the original applicant (who was not a lawyer) to act as his counsel in private prosecution proceedings directed against TR, Chief of the Police District of Pyhäjärvi, and S, a witness examined by the District Court in the afore-mentioned case against L. TR was suspected of having committed an offence in office while in charge of the pretrial investigation into the offence committed by L. S was suspected of having deliberately given false testimony to the District Court and of having omitted certain information from his witness statement without having been entitled under domestic law to do so.         In January 1990 the District Court dismissed the charges against S. In February 1990, having dismissed the charges against TR, it convicted L and the original applicant of having accused TR maliciously and of having defamed a public authority by relying on untruthful information. They were sentenced to four months' unconditional imprisonment. The District Court had apparently refused to examine certain witnesses proposed by the defence.         In March 1992 the District Court, presided over by judge E, convicted L and the original applicant of having accused S maliciously. They were sentenced to three months and fifteen days' unconditional imprisonment. As regards legal aid, the District Court considered that it had been clearly unnecessary to hear the four witnesses proposed by the original applicant (including K) and that the related costs should therefore be borne by the defence. The District Court had apparently refused to examine certain further witnesses proposed by the defence. On 7 June 1993 the Vaasa Court of Appeal (hovioikeus, hovrätten) dismissed L's and the original applicant's appeals, including, inter alia, the original applicant's objections to the District Court's minutes from a hearing on 29 January 1992 and to its refusal to hear certain witnesses proposed by the defence. In September 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.         In May 1992 the original applicant instituted private prosecution proceedings before the Court of Appeal against judge E, deputy county police superintendents JV and TS (who had initially prosecuted L and the original applicant for their malicious accusation against S), the above-mentioned police chief TR as well as police inspector MK and senior police officer PR (who had both been TR's inferiors). All were suspected of having committed offences in office in the proceedings resulting in the conviction of L and the original applicant in March 1992. At its hearing on 29 January 1992 the District Court's composition had allegedly not been in accordance with the law, as E had refused to present his letter of appointment. Reference was also made, inter alia, to the manner in which E had reproduced in the District Court's minutes the original applicant's statements at the same hearing. Furthermore, at the hearing on 18 March 1992 E had not allowed the examination of certain witnesses proposed by the defence. The original applicant also suspected JV of having given false testimony to the District Court on 29 January 1992.         The original applicant furthermore requested that all defendants should, jointly with the State, be ordered to pay him compensation for mental suffering and cover his legal costs. Referring to an enclosed affidavit signed by K, he finally requested an oral hearing enabling the examination of K as a witness (in respect of the offences allegedly committed by judge E).         The Court of Appeal obtained written observations from all defendants as well as from its Prosecuting Counsel (kanneviskaali, advokatfiskalen). The latter did not support the charges. The original applicant did not avail himself of the opportunity to submit final observations in reply.          In its two judgments of 7 June 1993 the Court of Appeal recalled that when acting as a court of first instance it would, as a general rule, hold an oral hearing, if this had been requested by a party or there was otherwise a reason for proceeding in that manner. However, if a claim presented to a court of appeal was manifestly ill-founded there was no reason to hold an oral hearing. As this was the case with the claims in question, the Court of Appeal dismissed the hearing requests in the respective cases. It furthermore refused to take into account the affidavit signed by the above-mentioned K.         In concluding that the claims were manifestly ill-founded the Court of Appeal noted, inter alia, that E had been properly appointed to preside over the District Court at its hearing on 29 January 1992. Moreover, the proceedings before the District Court resulting in the original applicant's conviction for having maliciously accused S had been thoroughly and diligently conducted. The original applicant had been allowed to examine all witnesses who might have known something about the relevant matter. Furthermore, the District Court had been right in refusing to allow the examination of such persons who, according to the preliminary information available to it, could not have stated anything of importance to the outcome of the case. Concluding that judge E had not acted contrary to his official duties, the Court of Appeal dismissed the private prosecution and the related claims for damages against him. It reached the same conclusion with regard to JV and TS.         The Court of Appeal declined jurisdiction in respect of the suspected false testimony given by JV, as this could not be characterised as an offence in office. As to the remainder of the case, the Court of Appeal also declined jurisdiction, noting that TR, MK and PR were to be prosecuted for suspected offences in office before the competent District Court.         When deliberating on the claims against JV and TS the Court of Appeal had at its disposal its own file in the case leading to the original applicant's conviction for the malicious accusation against S. When deliberating on the claims against judge E it also had at its disposal his handwritten draft minutes from the District Court's hearings on 29 January and 18 March 1992 as well as the audio tapes of those hearings.        On 5 January 1994 the Supreme Court, having examined their merits, dismissed the original applicant's appeals against the Court of Appeal's judgments. The Supreme Court held no oral hearing and there is no indication in its judgments that a hearing had been requested.         In February 1994 the original applicant requested the Supreme Court to quash or annul the Court of Appeal's judgments. These requests were apparently dismissed. The original applicant also sought to have proceedings instituted against those members and referendaries of the Court of Appeal and the Supreme Court who had examined his charges of May 1992 and his subsequent appeal. These attempts apparently failed.   B.     Relevant domestic law         The damages to be paid under the 1974 Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) comprise compensation for personal and material injury. A right to compensation for material damage which is not directly linked to a personal or material injury will arise if the damage is caused through a criminal offence or in the exercise of public authority or if there are otherwise particularly weighty reasons (chapter 5, section 1). The victim of a personal injury is entitled to receive compensation for, inter alia, physical suffering and any other permanent prejudice (chapter 5, section 2).         According to the title of chapter 26 of the Code of Judicial Procedure, it deals with the procedure in cases in which an appeal has been lodged with a court of appeal. Chapter 27 sets out the procedure in cases where a court of appeal acts as a court of first instance. The Supreme Court has found, in view of the nature of the matter and the requirements of legal safety, that a court of appeal acting as the court of first instance should not have dismissed the plaintiffs' request for an oral hearing for the purpose of examining witnesses. The case was therefore remitted to the court of appeal for the holding of a hearing (judgment No. 1988:114).         Chapter 30 of the Code of Judicial Procedure governs the procedure before the Supreme Court in all cases. There is no need to obtain leave to appeal if the Supreme Court acts as the first appellate court.     COMPLAINTS         Following the Commission's partial decision on admissibility (see below: "Proceedings before the Commission"), the remaining complaints concern the private prosecution proceedings which the original applicant brought against judge E and deputy county police superintendents JV and TS and, more specifically:   1.     The lack of an oral hearing.   2.     The alleged unfairness resulting from the lack of equality of arms and the Court of Appeal's refusal to hear certain witnesses proposed by the original applicant.   3.     The alleged lack of an effective remedy and the allegedly discriminatory outcome of the proceedings.         Article 6 (notably para. 3 (d)) as well as Articles 13 and 14 of the Convention have been invoked.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 July 1994 and registered on 1 August 1994.         By a partial decision of 17 January 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to communicate to the respondent Government the complaint regarding the lack of an oral hearing in the private prosecution proceedings.         On 12 March 1996 the Government informed the Commission that the original applicant had died. The Government's time-limit for the submission of their written observations was then suspended. On 22 May 1996 the applicant successor stated his wish to pursue the application on his deceased father's behalf.         On 2 July 1996 the Government was again invited to submit their written observations. These were submitted on 13 September 1996. The applicant successor replied on 11 November 1996.         On 2 December 1997 the case was transferred from the First Chamber to the Plenary Commission, by decision of the latter.     THE LAW   1.     The Commission recalls that close relatives of a deceased applicant are in principle entitled to take his or her place in the proceedings before the Convention organs (see, e.g., Eur. Court HR, Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, pp. 14-15, paras. 31-32 with further references). In the circumstances of the present case the Commission therefore accepts that the original applicant's son may pursue the application on his behalf.   2.     The original applicant complained about the lack of an oral hearing in the private prosecution proceedings which he had brought against judge E and county police superintendents JV and TS. He invoked Article 6 (Art. 6) of the Convention and notably Article 6 para. 3 (d) (Art. 6-3-d).         The Commission has examined this complaint in the light of Article 6 para. 1 (Art. 6-1) which reads, as far as relevant, as follows:         "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 ... by an independent and       impartial tribunal established by law. ...         The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable, since there was no dispute over a "civil right" which could arguably be considered recognised in domestic law. It is true that the original applicant claimed compensation for mental suffering caused by the crimes allegedly committed by E, JV and TS. It is the Government's contention, however, that he did not claim compensation for actual personal injury (such as bodily harm) or material damage (such as damage to property).         Should Article 6 para. 1 (Art. 6-1) nevertheless be found to apply, the Government concede that Finland's reservation as to the right to an oral hearing does not extend to proceedings in which a court of appeal acts as the court of first instance. However, the dispute before the Vaasa Court of Appeal did not give rise to any questions of public interest requiring an oral hearing. The material at the Court of Appeal's disposal was sufficiently extensive. Besides, oral hearings contribute to the length of proceedings and significantly increase the costs of the procedure. The dispute was therefore better dealt with in writing and chapter 27 of the Code of Judicial Procedure does not stipulate that a court of appeal must hold an oral hearing in a case where it acts as the court of first instance. In practice only minor criminal matters have been resolved in written proceedings. Proceedings regarding suspected offences in office have, as a general rule, also been conducted in writing. The Government refer, however, to the Supreme Court's precedent No. 1988:114 (see "Relevant domestic law and practice").         The Government submit, moreover, that the original applicant was ultimately able to put to the Supreme Court all the arguments he wished to make and also to have them considered by that tribunal which had full appellate jurisdiction in the case. The Government recall, however, that in its reservation Finland has stated that it cannot guarantee a right to an oral hearing before the Supreme Court in so far as current Finnish laws do not provide such a right. This reservation applied to the proceedings before the Supreme Court in the present case.         The applicant successor contends that Article 6 para. 1 (Art. 6-1) is applicable. The original applicant's compensation claim was based on chapter 5, section 1 of the Tort Liability Act which guarantees a right to compensation for material damage even if it is not directly linked to a personal or material injury, provided the damage was caused in the exercise of public authority. It is alleged that already the prison sentence which the original applicant had had to serve - allegedly despite his being innocent - had caused him such damage. In the private prosecution proceedings he also claimed compensation for his legal costs.         On the assumption that Article 6 para. 1 (Art. 6-1) is found to apply, the applicant successor submits that Finland's reservation cannot be interpreted so extensively as to permit the complete lack of an oral hearing "in a criminal case". An oral hearing would have been necessary so as to enable the original applicant to examine some of the witnesses whom he had unsuccessfully proposed to the District Court in the criminal proceedings against himself. An affidavit signed by K clearly indicated that her testimony would have been relevant. Reference is also made to the particular circumstances at hand: In the proceedings against himself the original applicant had been convicted of acts which he had performed in his capacity as L's counsel. Moreover, his private prosecution was directed against officials exercising public authority.         The Commission finds that Article 6 para. 1 (Art. 6-1) is not applicable under its "criminal head", given that the original applicant was not himself charged with a criminal offence in the proceedings in question. Likewise paras. 2 and 3 do not apply in this case. The Commission recalls that the applicability of Article 6 para. 1 (Art. 6-1) under its "civil head" requires the existence of "a genuine and serious dispute" over a "civil right" which can be said, at least on arguable grounds, to be recognised under domestic law. A claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are clear indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or otherwise lacking in foundation (see Eur. Court HR, Rolf Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV, No. 41, para. 38 and further references therein; ).         The Commission notes that in his private prosecution the original applicant claimed compensation both for mental suffering and for his legal costs. The Commission will assume that his right to such damages could be said, at least on arguable grounds, to be recognised under domestic law. There was thus, in principle, a dispute regarding a "civil right" of his (cf., a contrario, Hamer v. France judgment of 7 August 1996, Reports 1996-III, No. 13, p. 1044, paras. 75-78).         As regards the question whether the dispute was "genuine and serious", the Commission notes that one of the purposes of the proceedings was to obtain damages from Judge E and county police superintendents JV and TS on account of their purported offences in office. Those offences were alleged to have been committed in the course of the criminal proceedings leading to the original applicant's conviction for having maliciously accused S.         However, the Commission cannot find that the original applicant substantiated his private prosecution against E, JV and TS by submitting new relevant evidence which had not already been available to the courts in the proceedings leading to his own conviction for the malicious accusation against S (cf., mutatis mutandis, Rolf Gustafson v. Sweden, Comm. Report 18.10.95, para. 50, Eur. Court HR, to be published in Reports of Judgments and Decisions 1997). Thus, in examining whether defendants E, JV and TS had acted contrary to their official duties the Court of Appeal relied on its own file in the case leading to the original applicant's conviction. That file presumably included the District Court's judgment, the official minutes from its hearings, the transcripts of the witness testimony and the parties' written submissions. Moreover, when deliberating on the original applicant's claims against judge E, the Court of Appeal had at its disposal both its own file in the case resulting in the original applicant's conviction and various further material emanating from the District Court's hearings on 29 January and 18 March 1992. Contrary to what has been asserted before the Commission, K was in fact examined by the District Court in the proceedings leading to the original applicant's conviction. It must be presumed that either the Court of Appeal's own case-file or the further material which it had obtained from the District Court in the private prosecution proceedings included K's testimony in the case against the original applicant. It has not been shown that he requested the hearing of any other witness in the private prosecution proceedings. Nor has it been alleged that he was prevented from expressing his misgivings with E's, JV's and TS's conduct of the trial and the prosecution already during the proceedings leading to his own conviction. On the contrary, his objections to the District Court's minutes from the hearing on 29 January 1992 and to its refusal to hear certain witnesses proposed by the defence were examined and dismissed by the Court of Appeal in its judgment of 7 June 1993, following which the Supreme Court refused leave to appeal. Finally, it is noteworthy that the Prosecuting Counsel of the Court of Appeal did not support the original applicant's private prosecution.    In the Commission's view these circumstances provide sufficiently clear indications that the dispute in question was not genuine and serious. Accordingly, Article 6 para. 1 (Art. 6-1) is not applicable in the instant case.         It follows that this complaint is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The original applicant furthermore complained about the alleged unfairness of the private prosecution proceedings against judge E and prosecutors JV and TS. There had allegedly been no equality of arms and he had not been allowed to call witnesses. He again invoked Article 6 (Art. 6) of the Convention.         The Commission has just found that Article 6 (Art. 6) is not applicable in the present case. It follows that this complaint is also incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     The original applicant finally complained about the alleged lack of an effective remedy in the private prosecution proceedings and about their allegedly discriminatory outcome. He invoked Articles 13 and 14 (Art. 13, 14) of the Convention which read as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         The Commission recalls that the respective rights guaranteed by Articles 13 and 14 (Art. 13, 14) can only relate to a right or freedom protected by one of the substantive provisions of the Convention or its Protocols (see, e.g., Eur. Court HR, Pierre-Bloch v. France judgment of 21 October 1997, Reports 1997-VI, No. 53, paras. 62-64).         Given the Commission's finding above that Article 6 (Art. 6) of the Convention does not apply in the instant case, Articles 13 and 14 (Art. 13, 14) are also inapplicable.         It follows that this complaint is also incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,         DECLARES INADMISSIBLE the remainder of the application.            M. de SALVIA                         S. TRECHSEL           Secretary                            President       to the Commission                    of the Commission